Carr v. Moss

• Decision Date: 31 October 1885
• Citation: 87 Mo. 447
• Parties: CARR, Appellant, v. MOSS.
• Court: Missouri Supreme Court

87 Mo. 447

CARR, Appellant,

v.MOSS.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Livingston Circuit Court.--HON. J. M. DAVIS, Judge,

REVERSED.

Collier & Kemp for appellant.

(1) The motion to conform the pleadings to the proof should have been sustained. R. S., secs. 3565, 6, 7; Bennett v. McCause, 65 Mo. 194; Turner v. Ry., 51 Mo. 501; Fisher v. Max, 49 Mo. 404; Harkness v. Julian, 53 Mo. 238; Wells v. Sharp, 57 Mo. 56. (2) The court erred in its finding as to the amount of indebtedness from Carr to Moss.

Frank Sheets and H. C. McDougal for respondent.

HENRY, C. J.

In this suit, commenced in the Livingston circuit court, plaintiff asks to redeem certain lands by him conveyed to defendant, as security for moneys advanced by the latter to him, and for a settlement of accounts between them. Lewis A. Chapman was appointed a referee to take the testimony and make his report thereon to the court. At the May term, 1881, of said court, the court made a decree, finding that a warranty deed, dated January 27, 1874, made by plaintiff to defendant for lands therein described, was, in fact, a mortgage to secure to defendant the payment of such amount as should, on a final settlement between plaintiff and defendant, be found due to the latter, and it was also decreed, that, on the payment of such amount, so found to be due to him, he should re-convey the said lands to plaintiff, free of all incumbrances done or suffered by him, etc., and the referee was further ordered to find the facts as to all incumbrances placed by defendant on said lands, and make report of the same, and that the court might be more fully advised as to the state of the account between the parties, the referee was further ordered, by consent of the parties, to take the account between them, and to use the evidence already taken, and such additional evidence as they might offer, and make a report at as early a day as practicable.

Afterwards, at the January term of said court, 1882, on the thirty-first day of January, plaintiff asked leave, by motion, to amend his petition so as to make it conform to the proofs, which was overruled, and, at the May term, 1882, of said court, a final judgment was rendered in said cause, finding that plaintiff was indebted to defendant in the sum of $1925.79, etc.

Section 3567 provides: “The court may, at any time, before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, or entry, * * * when the amendment does not change substantially the claim or defence, by conforming the pleadings or proceedings to the facts proved.” And even, “after final judgment rendered in any cause, the court may, in furtherance of justice, and on such terms as may be just, amend, in affirmance of such judgment, any record, pleading, etc., by adding or striking out the name of a party, or a mistake in any other respect, or by rectifying defects or imperfections in matters of form.” Section 3570. It is left discretionary with the...