Cummings v. Greif Bros. Cooperage Co.

• Decision Date: 26 March 1953
• Docket Number: No. 14615.,14615.
• Citation: 202 F.2d 824
• Parties: CUMMINGS v. GREIF BROS. COOPERAGE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

202 F.2d 824 (1953)

CUMMINGS v. GREIF BROS. COOPERAGE CO.

No. 14615.

United States Court of Appeals Eighth Circuit.

March 26, 1953.

Tilghman E. Dixon and Gerland P. Patten, Little Rock, Ark., for appellant.

Sid J. Reid, Sheridan, Ark., and Wright, Harrison, Lindsey & Upton, Little Rock, Ark., for appellee.

Before THOMAS, JOHNSEN and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

This is another case involving the matter of the right and the effect of amending a complaint in a diversity suit, as a question of substantive significance in relation to state practice and of procedural regulation in relation to the Federal Rules of Civil Procedure, 28 U.S.C.A. See also Petsel v. Chicago, B. & Q. R. Co., 8 Cir., 202 F.2d 817, recently decided.

The complaint herein, filed in the federal court in December, 1951, alleged that defendant had in 1945 unlawfully entered upon some land owned by plaintiff in the State of Arkansas, the legal description of which was set out, and "cut down and removed therefrom some pine trees and manufactured same into staves;" that "the defendant converted logs of the plaintiff to its own use and benefit and plaintiff has been damaged in the amount of the value of the staves at the time of the conversion, less the cost of converting the logs into the finished product, said damages being in the sum of Seven Thousand Dollars;" that demand had been made upon defendant "for compensation for the timber so cut" but such demand had been refused; and that plaintiff prayed judgment against defendant in the sum of $7,000, with interest "from the date of the conversion," and costs. The action thus, while containing allegation of a trespass, was in its basis and object simply one to recover damages for the appropriation or conversion of cut timber or logs as personal property.

Within the time allowed by Rule 15(a), Federal Rules of Civil Procedure, 28 U.S. C.A., as well as apparently on leave granted by the court, plaintiff, in February, 1952, filed an amendment to the complaint, correcting a claimed error in the description of the land and of the year that the conversion had occurred, making change in the Township number of the land from "Three" to "Four", and in the time of the commission of the wrong from "1945" to "1947 and 1948".

Defendant thereupon filed a motion to dismiss the action, which was sustained by the trial court, upon the grounds (1) that the change in the description of the land and of the date of the conversion constituted as a matter of law an attempt to recover "for a different trespass and conversion", the recovery right for which was barred by Ark.Stats. § 37-206, as not having been made the subject of suit within three years after its accrual; and (2) that further, whether the amendment to the complaint was regarded as setting up a new cause of action or not, the right to recover on it would in any event be barred, because plaintiff's wife had not been made a party to the action and as a matter of limitation could not now be so joined, and her joinder was necessary to a recovery, since it appeared from the admission of plaintiff, on the hearing of the motion to dismiss, that title to some of the property from which the timber had been cut was held by himself and his wife jointly, as an estate by entirety.

In resistance to the motion to dismiss, plaintiff made showing by testimony that the changes in the description of the land and of the year, contained in the amendment, were simply corrections of mistakes which had occurred in his pleading; that, while the description set out in the complaint had been correct as to section, range and county, the township number of the land had inadvertently been made to read "three" instead of "four"; that he did not own the land covered by the description in township 3 and had never had title to it or ever made any claim thereto; that prior to his institution of suit he had taken up with defendant the matter of the conversion claimed by him in relation to the land described in the amendment; that the disagreement between them had been over the exact location of the boundary line between the land described in the amendment and the land immediately adjoining; and that there never had been any conversion claim or controversy between them "except (as) to the timber cut from my land in twp. 4N." This testimony is without denial in the record.

Plaintiff's testimony on the hearing on the motion further showed that he had filed a previous suit in the Arkansas state court for the conversion, in which the error also had been made in the complaint of describing the township number as 3 instead of 4. The memorandum opinion of the trial court states that this suit had been filed in August, 1950, "within three years of the alleged trespass", and had been voluntarily non-suited in December, 1951, just prior to the institution of this action in the federal court. These facts are not otherwise made to appear in the record, but we take them as admitted. Ark.Stats. § 37-222, permits the filing within one year of another suit upon a cause of action, which has been voluntarily non-suited, where the original action was itself instituted within the regular limitation period.

As to the title to the land covered by the amended description, plaintiff's testimony also showed that he was the sole owner of 45 acres thereof and that the rest of it was owned by himself and his wife jointly. Again, the record contains nothing in denial of this testimony.

If the trial court was correct in holding that recovery upon such cause of action as would exist under the amendment to the complaint was barred by the Arkansas statute of limitations, then the judgment of dismissal must be affirmed. The federal courts do not grant recoveries on rights under state law, where the statute of limitations would bar a recovery, if the action were pending in the state courts. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 110, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079; Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520.

The trial court, as we have indicated, held that the change made by the amendment in the description of the land from which the trees were cut and of the year in which they had been appropriated, even though constituting, as plaintiff claimed, merely the correction of mistakes made in stating the actual facts, was as a matter of law an attempt to recover for a different conversion or on a new cause of action.

It might incidentally be noted that the suit here was not one to recover an interest in real estate, where the land itself would constitute the basis or the subject of the action, as to which some courts, at least in earlier cases, seem to have taken a narrow attitude toward the amendment of legal description. The damages sought to be recovered are for the conversion of the cut trees or logs as personal property. Hence, just as in Union Naval Stores Co. v. United States, 240 U.S. 284, 287, 36 S.Ct. 308, 310, 60 L.Ed. 644, "The land is referred to only to identify the chattels, conversion of which is alleged." And also in a sense at least, the time alleged constitutes an element of identification as to the conversion committed.

Both facts are matters which a defendant is entitled to know for purposes of defense and possibly of subsequent res adjudicata protection. But it has never been the rule that exactness in the statement of place and of time in a complaint is a condition precedent to the right to recover for a conversion. So to view a pleading statement of these identificatory incidents would make any variance from that statement, on a trial or in any preliminary proceeding, no matter how slight or whether having at all occasioned any misleading, one that would be absolutely fatal.

Even before the present liberalization which has occurred in the concepts of many of our pleading-and-practice systems, it had been the general rule that amendments could be permitted "in respect of the date and place of the conversion." 65 C.J., Trover and Conversion, § 144c, p. 86. And as to the existence of the right under Arkansas law to allow mistakes made in the pleading of place and time in a conversion action to be corrected as mere procedural incidents and without substantive aspect, it does not seem to us that there can be any question.

In the first place, Ark.Stats. § 27-1160, specifically provides that "The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings * * * by correcting a mistake in the name of a party, or a mistake in any other respect". (Emphasis ours.)

And the Arkansas courts are not among those which have taken a narrow attitude toward permitting the amendment of title description even in actions where land itself is the subject of the action, such as has been done by some courts, as referred to above. Thus, in the early case of Smith v. Halliday, Ark., 13 S.W. 1093, 1094 (not contained in the Arkansas Reports), where leave was granted in an ejectment suit to change the description of the land from "E½" to to "W½", the court said: "That the court can, and in the exercise of its discretion should, grant such leave, it requires no argument to establish. Where the ends of justice require it, the amendment should be granted upon terms that will prevent surprise and injustice. * * * The amendment tendered no new issue, but simply substituted a correct for incorrect description of the property in controversy * * *." (Emphasis ours.)

Again, in the...