Cottrell v. Smith

• Decision Date: 18 April 1927
• Docket Number: 26434
• Court: Mississippi Supreme Court
• Parties: COTTRELL v. SMITH. [*]

112 So. 465

146 Miss. 837

COTTRELL v. SMITH. ^[*]

No. 26434

Supreme Court of Mississippi

April 18, 1927

Division A

Suggestion of Error Overruled May 9, 1927.

APPEAL from chancery court of Adams county HON. R. W. CUTRER Chancellor.

Suit by Edward T. Cottrell, for the use and benefit of the Mary Mac Plantation Company, against Archibald Smith. Judgment of dismissal, and complainant appeals. Reversed and remanded.

Reversed and remanded.

Ratcliff & Ratcliff and L. T. Kennedy, for appellant.

The amendment made in this case in no sense changed the cause of action or varied the subject-matter of the suit. It only made clearer the capacity in which complainant sued in accordance with the facts developed by the depositions taken. Cottrell, in whose name the suit was originally brought, had the legal title thereto, and we think he could unquestionably have maintained the suit in his own name; but inasmuch as it developed that the Mary Mac Plantation Company of Tennessee had a beneficial interest in the note sued on, or, if you please, was the equitable owner of the note, it was deemed proper that the pleadings should show fully the capacity in which he sued.

The greater weight of authority is to the effect that such an amendment does not create a new cause of action or change the status of the defendant in any manner whatsoever and the statute of limitation ceases to run at the date of the filing of the suit, which in this case, was brought long prior to any bar of the statute. Nor does an amendment which changes the name of the complainant or the capacity in which he sues constitute a new cause of action so that the statute of limitations could be plead against the note sued on when the bar of the statute had become complete in the interim between the filing of the original suit and the amendment. See 25 Cyc., page 1302 et seq., and especially note No. 56 and authorities therein cited on page 1304; Bowen v. Nat'l Life Ass'n, 63 Conn. 460; U. S. Ins. Co. v. Ludwig, 108 Ill. 514; Lilly v. Tabein, 103 Mo. 477.

Luther A. Whittington, for appellee.

The bill of complaint having wholly failed to state a cause of action as originally filed in the chancery court, what effect on the running of the statute of limitations did the filing thereof have? We answer, None! Cox v. Mortgage Co., 88 Miss. 88.

If the suit could be maintained at all, which is open to question, by Cottrell suing for the use, etc., then a suit which stated a cause of action was filed for the first time in the chancery court when the amendment was allowed and made; namely, on October 16, 1925, or after the bar of the statute of limitations had applied. The rule we invoke is laid down in 25 Cyc., page 1309. This court has followed the principle above laid down in Cox v. Mortgage Co., 88 Miss. 88.

We contend that the original bill was fatally defective; that no judgment could have been rendered thereon validly; that not even a judgment would have cured the defect. The amendment alone gave vitality and life to the bill of complaint and for the first time stated a cause of action. Having been filed and made after the statute of six years had run, the plea of this statute was good and was properly sustained by the court.

We do not think that, aside from the statute of limitations, under the statute in Mississippi conferring power to sue upon assignees of choses in action or note, that the suit could be maintained even as amended, for all the facts developed conclusively show that Cottrell had no interest in the note whatsoever.

Argued orally by E. H. Ratcliff, for appellant, and L. A. Whittington, for appellee.

OPINION

SMITH, C. J.

This is a suit upon a promissory note executed by the appellant to the Mary Mac Plantation Company. It was begun in the circuit court, and transferred therefrom to the court below. The suit is upon a purely legal demand, and why the cause was transferred to the court below is not apparent, and is not here material. The original bill was by the complainant, in his own name, without disclosing any beneficial interest in the note in the Mary Mac Plantation Company. The appellee, by answer and cross-bill, challenged the appellant's ownership of the note, and alleged that the real ownership thereof was in Kenneth Stevenson, president of the Mary Mac Plantation Company, and set forth a defense thereto against Stevenson. Before the cause came on for trial, Cottrell's deposition was taken, and it appeared therefrom that he had no beneficial interest in the note, but that it was assigned to him for a mere nominal consideration, and that he was to account to the Mary Mac Plantation Company therefor when collected. The assignment was not by an indorsement on the note, but was by a separate instrument, which reads as follows:

"That the Mary Mac Plantation Company of Tennessee, in consideration of the sum of one dollar and other good and valuable consideration to it in hand paid by Edward T....