Haney v. Thomson

• Decision Date: 10 November 1936
• Parties: Bonds F. Haney, Appellant, v. Harry P. Thomson and Lawrence E. Thomson, Partners Doing Business Under the Name of Thomson Brothers Rock Company
• Court: Missouri Supreme Court

98 S.W.2d 639

339 Mo. 505

Bonds F. Haney, Appellant, v. Harry P. Thomson and Lawrence E. Thomson, Partners Doing Business Under the Name of Thomson Brothers Rock Company

Supreme Court of Missouri

November 10, 1936

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Kennard & Gresham, F. M. Kennard and Walter J. Gresham for appellant.

(1) The amendment related back to the original petition. The amendment made no change in the cause of action, but merely identified the party sued by correcting an error in description. State ex rel. v. Wilson, 216 Mo. 215 115 S.W. 549; Brick Co. v. Lane, 198 Mo.App. 438 200 S.W. 306; McGrath v. Railroad Co., 128 Mo. 1, 30 S.W. 329; Lumber Co. v. Wright, 114 Mo. 326, 21 S.W. 811; Rathmacher v. Linberg, 14 S.W.2d 467; Quirk v. Ry. Co., 200 Mo.App. 593, 210 S.W. 106; Matthews v. Karnes, 9 S.W.2d 628; 37 C. J. 1068; Hirsch v. Hirsch, 273 S.W. 151; Bowen v. Buckner, 171 Mo.App. 384, 157 S.W. 829; Bush v. Serat, 217 S.W. 865; World, etc., Ins. Co. v. Sandblasting Co., 105 Conn. 640, 136 A. 681; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871; Butter Tub Co. v. Bank, 115 Kan. 63; Gewe v. Hanszen, 85 Mo.App. 136. (2) Defendants appeared before limitations had run. The partnership filed general denial to the original petition. This constituted a general appearance by the partners before limitations had run. Paddock v. Soames, 102 Mo. 226, 14 S.W. 746; Market Co. v. Wentz, 321 Mo. 943, 13 S.W.2d 641; 47 C. J. 976; LaForge v. Bader, 15 S.W.2d 945; Davis v. Kline, 76 Mo. 310; Packing Co. v. Turner Casing Co., 34 Kan. 340; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618; Law Reporting Co. v. Grain Co., 168 S.W. 1001; Boehmke v. Traction Co., 88 Ohio St. 156, 102 N.E. 700. (3) Defendants waived limitations. After the petition was amended and defendants served with summonses, they again filed general denial, and did not plead limitations until a year afterwards. The general denial was a waiver of the defense. Conkling v. Lbr. & Mfg. Co., 225 Mo.App. 494, 34 S.W.2d 990.

G. W. Duvall, L. C. Harper and C. E. Thomson for respondents.

(1) Defendants were not in court by entry of appearance. Johnson Machinery Co. v. Watson, 57 Mo.App. 634; Van Natta v. Harroun Realty Co., 251 Mo. 373, 120 S.W. 738; Met. St. Ry. Co. v. Adams Express Co., 145 Mo.App. 373, 130 S.W. 101; Williams v. Express Co., 195 Mo.App. 362, 191 S.W. 1087; Sec. 1186, R. S. 1919 (Sec. 728, R. S. 1929) as ruled unconstitutional by Syz v. Milk Wagon Drivers' Union, 24 S.W.2d 1082, insofar as it undertook to make a partnership a suable entity; Law Reporting Co. v. Texas Grain & Elevator Co., 168 S.W. 1001; Weldon v. Fisher, 194 Mo.App. 573, 166 S.W. 1155; Leatherman v. The Times Co., 88 Ky. 291, 11 S.W. 12, 21 Am. St. Rep. 388, 30 Ky. L. 272; Inman v. Allport, 65 Ill. 540. (2) Defendants were not in court until brought in by amended petition naming them individually which did not relate back as to them, new defendants. United States Ins. Co. v. Ludwig, 108 Ill. 574; Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 892; Hiller v. Schulte, 184 Mo.App. 42, 167 S.W. 462; 37 C. J., p. 1066, sec. 502; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 621; Gresham v. Talbott, 326 Mo. 517, 31 S.W.2d 767; Girardi v. Laquin Lbr. Co., 232 Pa. 1, 81 A. 63; Cytron v. Transit Co., 205 Mo. 692, 104 S.W. 111.

OPINION

Hays, J.

This is an appeal bringing up the question of whether or no the plaintiff's cause of action was barred by the five-year Statute of Limitations. The question arises out of the action of the court below in rendering final judgment against the plaintiff on demurrer offered by the defendants to plaintiff's petition herein. The plaintiff has appealed.

This is the second one of two suits filed by plaintiff on the same cause of action. The alleged error inheres in the first one, wherein after various pleadings had been filed the plaintiff took a nonsuit. The plaintiff filed the present suit, in which the petition, after stating his cause of action as before, counted upon the proceedings had and record made in the first case by way of avoiding the bar of limitations. In the present case the defendants were impleaded as indicated in the title appearing in the heading of this opinion. If any subsidiary matter in that pleading needs to be mentioned it will merely be stated as a fact in passing.

The first original petition was on December 3, 1926, filed in the circuit court against "Thomson Brothers Rock Company, a corporation," on running account, in an amount then over $ 7500, which accrued April 10, 1925. On May 9, 1927, at the return term answer, in the name of "Thomson Brothers Rock Company, defendant," was filed. It reads as follows: "Comes now the above named defendant and for its answer to plaintiff's petition filed herein denies each and every allegation therein contained, and specifically denies that it is a corporation. (Signed) G. W. Duvall, attorney for defendant." Appended thereto was the attorney's affidavit of substantially the same import. (Shortly, plaintiff was adjudged a bankrupt, and the cause remained in statu quo until August, 1928, when he was discharged from bankruptcy and the then pending action was set off to him. This circumstance, though pleaded, is not briefed as affecting limitations.) On January 3, 1931, plaintiff amended his petition to correct the allegation that Thomson Brothers Rock Company was a "corporation," and set out that the company was a partnership composed of (the individuals we indicated above), and inserted their names as doing business in Kansas City under that name, and alleged there was no other concern of any sort doing business there under that name. Summons was issued on September 15, 1931, and served on the individual copartners. On September 15, 1931, they answered by general denial only. In September, 1932, they filed amended answer, conjoining with a general denial a plea of bar by Statute of Limitations.

The counsel agree that the trial court ruled the demurrer on the theory the defendants were not in court prior to January 3, 1931, when the bar of limitations had not been interrupted and was complete. That is the theory the respondents contend for in this court. Appellant's position is that the partnership filed a general denial to the original petition and that this, then and there, constituted a general appearance by the partners before limitations had run. So it seems that the controversy is to be determined both under established rules of procedure and practice and principles of substantive law. We now undertake to consider such of those as are brought to our attention by the counsel, and possibly others if necessary; first noting, however, a concession made by the appellant.

I. Appellant, though contending that the partnership filed a general denial to the original petition, and that this, then and there, constituted a general appearance by the partnership before limitations had run, concedes at the close of his brief, "that after an amendment correcting names or descriptions of defendants, it is necessary to serve them with new summons. Of course. That is for the reason that if they have been previously served, the summons is defective and should be amended to conform to the amendment of the petition. The amendment being made, they relate back to the filing of the petition, so far as limitations is concerned." We pause to observe that such concession, wittingly or unwittingly made, places him in a position, with reference to his said contention, where he is compelled to rely: first, on the proposition that the partnership filed the answer; second, the filing of it in the form of a general denial, -- an answer to the merits -- constituted a general appearance of the partnership; third, that such appearance conferred on the court the jurisdiction of the partnership as a suable entity and on the plaintiff the right to substitute the partners as defendants and to obtain jurisdiction of them by summons; and the partnership being such an entity as suit may be maintained against (not merely brought against), limitations remained suspended from the institution of the suit, and jurisdiction of the partnership continued indefinitely until plaintiff might be able or see fit to amend the petition and bring in the partners by process and maintain the suit to final recovery or defeat. It means no less. And so meaning, it confesses the lack of jurisdiction over the partners until they themselves should be brought in by summons. In such case the partners would be new parties in the legal sense of the term, notwithstanding the subsequent amendment made no change in the cause of action, and would have related back to the institution of the suit, and would thus have intercepted the running of limitations, had the newly made parties not been defendants. This concession overlooks the rule that general appearance ipso facto waives defective or any service -- the very rule appellant is relying upon.

The general rule is well settled that where new parties are brought in by amendment, and by process issued thereon, the Statute of Limitations continues to run in their favor until thus made parties. [37 C. J., pp. 1066-7, sec. 502; Jaicks v. Sullivan, 128 Mo. 177, 30 S.W. 890; Hiller v. Schulte, 184 Mo.App. 42, 167 S.W. 461; Gresham v. Talbot, 326 Mo. 517, 31 S.W.2d 766; Cytron v. Transit Co., 205 Mo.App. 692, 701-2, 104 S.W. 109; Lilly v. Tobbein, 103 Mo. 477, 15 S.W. 618.]

But argues appellant, that general rule does not apply where the addition of a new defendant merely corrects a defect in the original proceedings. The text of Corpus Juris, ibid., so states the rule, and proceeds to state another exception to the rule, thus: "Nor to a case where no judgment at all can be rendered until all ...