La Forge Undertaking Co. v. Bader

• Decision Date: 30 March 1929
• Docket Number: No. 4490.,4490.
• Parties: LA FORGE UNDERTAKING CO. v. BADER.
• Court: Missouri Court of Appeals

15 S.W.2d 945

LA FORGE UNDERTAKING CO. v. BADER.

No. 4490.

Springfield Court of Appeals. Missouri.

March 30, 1929.

Rehearing Denied April 15, 1929.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action begun before a justice of the peace by the La Forge Undertaking Company against G. B. Bader. Plaintiff recovered judgment, and on appeal to the circuit court plaintiff again recovered, and defendant appeals. Affirmed.

McKay & Peal, of Caruthersville, for appellant.

Robert W. Hawkins, of Caruthersville, for respondent.

COX, P. J.

This case was submitted at a former hearing and an opinion prepared and handed down. Later a motion for rehearing was sustained, and the case has been again submitted for determination. After a careful review of our former opinion and the briefs and argument of counsel, we have concluded that the opinion as first written is right, and we are now adopting it as the opinion in this case. Said opinion is as follows:

This action was begun before a justice of the peace upon an account for goods sold and delivered. Judgment went for plaintiff. Defendant appealed to the circuit court, where upon trial by jury plaintiff again recovered, and defendant appealed to this court.

When the case reached the circuit court the defendant filed a motion to dismiss the cause of action on the ground that neither the justice of the peace nor the circuit court had jurisdiction to try and determine the cause. The reason it was claimed the court did not have jurisdiction was not stated in the motion, but the appellant now contends that the statement filed before the justice by plaintiff was not sufficient to state a cause of action and give the court jurisdiction, because it does not state that plaintiff was a corporation or a partnership; neither is there any statement that the plaintiff is an individual doing business under the name of "La Forge Undertaking Company." The plaintiff should have corrected the statement by amendment, which he could have done after the case reached the circuit court on appeal. Rohrbough-Moore & Co. v. Reed Bros., 57 Mo. 292; B. F. Glover & Son Commission Co. v. Milling Co., 136 Mo. App. 365, 116 S. W. 1112; Hirsch et al. v. Hirsch (Mo. App.) 273 S. W. 151, 153, and cases there cited.

At the beginning of the trial the defendant objected to the introduction of any evidence, on the ground that no cause of action was stated in the statement filed before the justice, and in that objection called the court's attention to the defect in the name of plaintiff, and insisted that the plaintiff was not alleged to possess any legal entity. The court overruled the objection. Why the plaintiff did not then amend the statement, we do not understand. The court ought to have required him to do so. Mr. Louis La Forge was placed on the witness stand, and there stated: "I am in the undertaking business. Run the La Forge Undertaking Company. I am now the owner. I was the owner at the time the suit was brought. No other person owns an interest except myself." He was the real party in interest, and the suit should have been filed in his name in the first instance, but the fact that it was filed in the name of "La Forge Undertaking Company," and proceeded to judgment in that name as party plaintiff, did not deprive the court of jurisdiction, nor render the judgment void. Fowler v. Williams, 62 Mo. 403; Davis v. Kline, 76 Mo. 310, 312; Crouch v. Hance, 62 Mo. App. 25.

Since the failure to properly name the plaintiff in the statement did not oust the court of jurisdiction, and the motion was limited to the one question of jurisdiction, it was properly overruled. While the court should have required the plaintiff to amend the statement, yet, since the judgment rendered in the name of La Forge Undertaking Company was not void, and there is nothing to indicate that the defendant has, in fact, been injured by the error of the court in not requiring the amendment, we cannot reverse the judgment upon that error of the court. Rev. Stat. 1919, §§ 1276 ...