Halloran v. Hackmann
| Decision Date | 16 April 1942 |
| Docket Number | 37802 |
| Citation | 160 S.W.2d 769 |
| Parties | HALLORAN v. HACKMANN |
| Court | Missouri Supreme Court |
Ernest E. Baker, of St. Louis, for plaintiff in error.
Karol A. Korngold, of St. Louis (A.B. Frey and Melvin L. Hertzman of Frey, Korngold & Hertzman, all of St. Louis, of counsel) for defendant in error.
HYDE Commissioner.
Plaintiff seeks review, by writ of error, of a judgment of dismissal of plaintiff's action for $ 75,000 for services rendered. This judgment was entered after the court had sustained defendant's motion asking 'that plaintiff's petition be stricken from the files and this cause dismissed.'
Plaintiff's petition alleged: 'That on, to wit, the 2nd day of December, 1935, plaintiff instituted an action against defendant in the Circuit Court of the City of St. Louis to recover for the services hereinafter alleged, and that said suit was instituted within five years after the last services herein alleged were performed by plaintiff for defendant, and that thereafter, to wit, on the 24th day of October, 1938, plaintiff therein suffered a nonsuit in said cause, and that plaintiff files this cause within one year after said nonsuit was suffered.' The petition then stated the following facts: That defendant was fearful that Joseph McBride would contest the will of Thomas Halpin; that Joseph McBride intended to contest said will; that defendant employed plaintiff to endeavor to induce Joseph McBride not to contest the will; that plaintiff did induce Joseph McBride to refrain from doing so; and that 'said services were performed by him beginning on or about the 12th day of January, 1930, continuously until subsequent to the 3rd day of December, 1930, * * * under one continuous, open running account between plaintiff and defendant.'
Defendant motion to dismiss stated that the court was without jurisdiction, upon three grounds as follows: (1) That the new suit did not state the same cause of action as the former suit in which plaintiff suffered a nonsuit. (2) That the petition in the new suit constituted a departure from the petition in the case in which plaintiff suffered a nonsuit. (3) That the new action was a new and different cause of action from the former suit, and that this action shows on its face that it is barred by the 5-year statute of limitations.
Defendant filed here a motion to dismiss the writ of error (taken with the case) on the ground of insufficiency of the abstract because the portions of the bill of exceptions set out therein do not include all matters which defendant deems material. However, defendant's motion to dismiss (all grounds therein amount to one claim, namely, this new action was shown to be barred by the statute of limitations) was a pleading which would perform the office of a demurrer and dispose of the whole case; and it should be treated as such. Ruggles v. International Ass'n of Bridge, Structural & Ornamental Iron Workers, 331 Mo.20, 52 S.W.2d 860, and cases cited. Therefore, nothing more than the record proper was required for this review. City of St. Louis v. Senter Commission Co., 340 Mo. 633, 102 S.W.2d 103. The motion to dismiss the writ of error is overruled.
Defendant's theory is that the part of the motion to dismiss seeking to strike plaintiff's petition was proper because a motion to strike is a proper way to raise the question of departure. See Reinker v. Wesche, Mo.Sup., 117 S.W.2d 334, and cases cited; 1 Houts, Missouri Pleading and Practice Annotated, p. 266, § 127, also § 161. However, a departure is a change of the cause of action by a subsequent pleading in the same lawsuit. See 1 Houts, Missouri Pleading and Practice Annotated, p. 331, § 160. In that situation, when the subsequent pleading is stricken, there is no final disposition of the lawsuit, but it still remains pending on the cause of action stated in any prior petition. The petition sought to be stricken here is not an amended petition continuing first lawsuit; that suit is ended. This petition is the first petition in a new action. The question actually sought to be presented is not departure, but the bar to the new action of the statute of limitations. One section of our articles on limitations (sec. 1026, R.S.1939; sec 874, Mo.St.Ann. p. 1161) grants an extension, of one year after nonsuit, to commence a new action on the same cause of action as was stated in the case in which the nonsuit was suffered. Nevertheless, the filing of a petition stating the same cause of action again is not a continuation of the former suit, but is the commencement of an entirely new suit, and, because of this saving statute, it is still within the limitations period. Therefore, if a new petition (although alleging a nonsuit of the same action as here) actually states a...
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