Earhart v. Valerius, 2987.
| Decision Date | 01 December 1938 |
| Docket Number | No. 2987.,2987. |
| Citation | 25 F. Supp. 754 |
| Parties | EARHART v. VALERIUS. |
| Court | U.S. District Court — Western District of Missouri |
K. Martin Kirschner, of Kansas City, Mo., for plaintiff.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, Mo., for defendant.
Heretofore a motion to dismiss plaintiff's petition in the above cause was sustained. When that was done plaintiff asked leave to file an amended petition. This was informally granted. The defendant now moves to strike out the amended pleading on the grounds that the order dismissing the original petition is an adjudication in his favor.
Rule 15 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides for amendments as follows:
The original petition was dismissed because an appended exhibit disproved an averment of the petition in the statement of plaintiff's cause of action. The plaintiff, in challenging the validity of a mortgage, said that it was not recorded as required by a statute in the State of Missouri (Mo.St.Ann. § 3097, p. 1919), in the county where the mortgagor resided. The attached exhibit showed that the mortgagor resided in the county where the mortgage was recorded.
The plaintiff has filed an amended petition by leave of court wherein it is averred that the recital in the mortgage as to the residence of the mortgagor was either fraudulently made or mistakenly made, and that in truth and in fact the mortgagor's residence was not in the county where the mortgage was recorded. It seems proper that plaintiff should be permitted thus to amend his petition.
The defendant urges an additional ground for striking the amended petition, which is to the effect that the trustee in this suit is taking advantage of a wrong committed by the mortgagor whose estate is in bankruptcy.
The plaintiff presents an authority which appears to cover the identical point presented in this suit. In the case of Fairbanks Steam Shovel Co. v. Wills, 240 U.S. 642, 648, 36 S.Ct. 466, 60 L.Ed. 841, the court discussed the question of equities and said that such equities were limited to the parties, and that the trustee would not be estopped where, as in this case, the mortgage was not recorded in the place of the residence of the...
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In re Dennis Mitchell Industries, Inc.
...of those creditors. Stewart v. Platt, 101 U.S. 731, 25 L.Ed. 816 (1879); Fairbanks Steam Shovel Co. v. Wills, supra; Earhart v. Valerius, D.C., 25 F. Supp. 754. In my opinion Joy's failure to comply with Sections 5 and 6 of the Uniform Conditional Sales Act rendered the contracts invalid ag......
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United States v. Newbury Mfg. Co., 3703.
...to allow the filing of an amended complaint, even though the judgment does not expressly reserve leave to amend. See Earhart v. Valerius, D.C.W.D.Mo.1938, 25 F. Supp. 754. But it seems likely that this discretionary power to vacate the judgment of dismissal can be invoked only upon motion m......
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Tahir Erk v. Glenn L. Martin Co.
...Rules of Civil Procedure shows a strong liberality among District Judges in allowing amendments under Rule 15(a). See Earhart v. Valerius, D.C.W.D.Mo.1938, 25 F.Supp. 754; Duke Power Co. v. Greenwood County, D.C.W.D.S.C.1939, 25 F. Supp. 963; Holland v. Majestic Radio & Television Corp., D.......
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Joy Manufacturing Co. v. Brooks, 62-C.
...of those creditors. Stewart v. Platt, 101 U.S. 731, 25 L.Ed. 816 (1879); Fairbanks Steam Shovel Co. v. Wills, supra; Earhart v. Valerius, D.C., 25 F.Supp. 754. In my opinion Joy's failure to comply with Sections 5 and 6 of the Uniform Conditional Sales Act rendered the contracts invalid aga......