Harrison v. Murphy

• Decision Date: 07 March 1904
• Parties: J. B. HARRISON, Respondent, v. A. P. MURPHY et al., Appellants
• Court: Kansas Court of Appeals

80 S.W. 724

106 Mo.App. 465

J. B. HARRISON, Respondent, v. A. P. MURPHY et al., Appellants

Court of Appeals of Missouri, Kansas City

March 7, 1904

Appeal from Maries Circuit Court.--Hon. James E. Hazell, Judge.

Judgment affirmed.

Thomas M. & Cyrus H. Jones and Joe McGregor for appellants.

(1) On the face of the pleadings filed in this case it appeared first, that the second amended petition filed by plaintiff and on which defendants Murphy were forced to trial, was a clear substitution of a new and different cause of action from the one declared on in his original petition. McCarty v. O'Bryan, 187 Mo. 589; Green v Lodge, 79 Mo.App. 184; Prewitt v. Warren, 71 Mo.App. 84; Parker v. Rhodes, 79 Mo. 88; Lumpkins v. Collier, 79 Mo. 170; Daudt v Machens, 13 Mo.App. 592; Heman v. Glann, 129 Mo. 325. (2) It is apparent from the pleadings in this case that the circuit court of Maries county had no jurisdiction over the person of the defendant Murphy or the subject-matter of the cause of action. Defendant A. P. Murphy was and is a resident of Crocker, Pulaski county, Missouri, and F. W. Murphy was and is a resident of Dixon, Pulaski county, Missouri. The plaintiff was and is a resident of Phelps county, Missouri. Huff v. Shepard, 58 Mo. 242. (3) The court should have sustained defendant's demurrer to plaintiff's evidence. Harris v. Woody, 9 Mo. 113; Powell v. Railroad, 76 Mo. 83; Clark v. Railroad, 36 Mo. 203; Smith v. Hutchison, 83 Mo. 691; Breen v. Fairbank Co., 35 Mo.App. 251. (4) The verdict of the jury in this case is contrary to and in conflict with instruction No. 7, given by the court on behalf of the defendants. Cole v. Armour, 154 Mo. 333; McCormick v. Railway, 154 Mo. 191. (4) This was a suit on an express contract and the finding and verdict of the jury and the judgment of the court rendered thereon is on a quantum meruit and is in direct conflict with and opposed to instructions numbered 4 and 5. Clemens v. Yates, 69 Mo. 625; Firth v. Anderson, 87 Mo. 354; Groll v. Tower, 85 Mo. 249; Stix v. Matthews, 75 Mo. 100; Johnson-Brinkman Co. v. Bank, 116 Mo. 567; McCormick v. Railway, 154 Mo. 191; Cole v. Armour, 154 Mo. 333; Hays v. Bunch, 91 Mo.App. 467.

J. A. Watson for respondent.

(1) By appearing at the October term of the circuit court of Maries county and taking leave to file answer thirty days before the next term of that court, appellant waived the question of jurisdiction over his person. Baisley v. Baisley, 113 Mo. 544; Peters v. Railroad, 59 Mo. 406; Taylor v. Railroad, 68 Mo. 397. (2) The amended petitions filed by plaintiff in this case did not change the original cause of action. Liese v. Meyer, 143 Mo. 547; Scovill v. Glasner, 79 Mo. 449; Holt v. Cannon, 114 Mo. 514; Sims v. Field, 24 Mo.App. 557. (3) Although the amendments were a substitution of a new and different cause of action, the appellants having gone to trial on the amended statement, waives the error, if any, in permitting the amendment. Wynn v. Followill, 98 Mo.App. 463; Sanguanette v. Webster, 153 Mo. 343; Real Estate Co. v. Lindell, 133 Mo. 395; Spurlock v. Railroad, 104 Mo. 658; Stearns v. Railroad, 94 Mo. 317; Hughs v. McDavitt, 102 Mo. 77; Scovill v. Glasner, 79 Mo. 449; Cravens v. Gilliam, 73 Mo. 527; Choteau v. Allen, 70 Mo. 290; Mortland v. Holton, 44 Mo. 58; Picketts v. Hart, 73 Mo. 654; Mathews v. Perdue, 79 Mo.App. 149; Chemical Co. v. Lackawanna Line, 70 Mo.App. 280; Hurley v. Railroad, 57 Mo.App. 680; State ex rel. v. Jones, 53 Mo.App. 212; Riley v. Stewart, 50 Mo.App. 601; Lawless v. Lawless, 39 Mo.App. 539; Philbert v. Burch, 4 Mo.App. 470. And by answering over and going to trial defendant waived his right to ask by bill of exceptions for a review of the ruling of the court on his motion to strike out the second amended petition. Bernard v. Mott, 80 Mo.App. 403; State ex rel. v. Butler Co., 164 Mo. 214; Tel. Co. v. Semes, 73 Mo. 9; Polsley v. Anderson, 7 W.Va. 202; Marsh v. Holbrook, 3 Abb. App. Dec. (N. Y.) 176.

OPINION

SMITH, P. J.

A Mrs. Wheeler employed W. H. Murphy, an attorney, to bring and prosecute an action for malpractice for her and in her name against Dr. W. H. Bowles. In the contract of employment it was agreed that the said W. H. Murphy should receive as compensation for his services in the malpractice case one-half of whatever amount should be recovered therein. The defendant, A. P. Murphy, a son of W. H. Murphy, was at that time associated with his father as partner in the practice of the law. Some time after the suit had been brought the Murphys concluded they would associate with themselves in the conduct and trial of the case the defendants Holmes and Mosby, the latter agreeing with the former that for their services they were to participate in the conditional fee to be received by the former. The case was tried in the circuit court where the plaintiff had judgment for $ 4,000. The defendant took an appeal to the Supreme Court. The cause was on the docket of the April term, 1901, of that court. In the December preceding, the said W. H. Murphy found himself in failing health and that he would not be able to prepare the brief and argue the case when it should be reached for hearing in the Supreme Court. In view of this, said W. H. Murphy and defendants Holmes and Mosby met in conference and there agreed that an attorney familiar with the practice in the Supreme Court should be engaged to brief and argue the case, and that defendant Holmes be authorized to engage such an attorney, exercising his judgment in the selection. Defendant Holmes thereupon requested the plaintiff to brief and argue the malpractice case, telling him that his fee would be conditional; that W. H. Murphy, Mosby and himself were to receive for their fee one-half of the amount of the judgment recovered and that they would satisfy him for his services out of that. The plaintiff after examination of the papers relating to the case told defendant Holmes that he would brief and argue the case for a five hundred dollar contingent fee. W. H. Murphy was notified of the plaintiff's employment and of the amount of the fee demanded, and with which he expressed himself satisfied. The plaintiff accordingly briefed and argued the case before the Supreme Court, where the judgment of the circuit court was affirmed. Shortly after the affirmance the plaintiff therein, Mrs. Wheeler, assigned the same to defendant A. P. Murphy, to whom, shortly thereafter, it was paid. The said W. H. Murphy died on April 22, 1901. The defendant A. P. Murphy paid plaintiff two hundred dollars for his services in the malpractice case and refused to pay him any more. This suit was brought to recover the sum of three hundred dollars claimed to be still due and owing plaintiff under his contract of employment. There was a trial in which plaintiff recovered judgment for two hundred dollars, and to reverse that judgment this appeal is prosecuted.

The contention of the defendants A. P. Murphy and F. W. Murphy, administrator of W. H. Murphy, deceased, is, that as the plaintiff resided in Phelps county and they resided in Pulaski county, that the circuit court of Maries county, in which the suit was brought, was without jurisdiction of their person. Even if the defendants Holmes and Mosby, residents of Maries county, were not necessary or proper parties defendant and were wrongfully joined with the Murphys as defendants in the cause, yet as the latter appeared to the action at the return term of the writ and obtained leave to answer thirty days before the next term, this was sufficient to confer jurisdiction. They thereby brought themselves within the jurisdiction of the court. The question of jurisdiction over the person was thereby waived as to them. Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Peters v. Railway, 59 Mo. 406; Taylor v. Railway, 68 Mo. 397; Tower v. Moore, 52 Mo. 118; Pry v. Railway, 73 Mo. 123; Clark v. Brotherhood Loco. Firemen, 99 Mo.App. 687, 74 S.W. 412.

It is true that under our present practice act a defendant may in his answer include with his defense on the merits a plea to the jurisdiction of the person of the defendant without foregoing the benefits of such plea. Byler v. Jones, 79 Mo. 261; Little v. Harrington, 71 Mo. 390. The defendants did not pursue this course but on the contrary they unconditionally appeared and took leave to answer within thirty days thereafter. After obtaining this permission they filed a motion to quash the writs which were, we think, properly overruled.

It is true, in their answer to the second amended petition they included with their defense on the merits a plea to the jurisdiction, but they seem thereafter to have abandoned this plea for it nowhere appears in the record that the court was requested to pass upon it. If the defendants had cared to rely upon this plea to oust the jurisdiction of the court they should have asked the consideration of it by the court before proceeding with the trial on the merits. After filing the answer containing the plea they made no further mention of it but proceeded without objection to a trial on the merits; and so are now in no situation to assail the judgment on the ground that the plea to the jurisdiction was not passed upon and determined by the court. If the court struck out any part of defendants' answer the record does not show such ruling nor does it show any exception was taken and saved thereto, so that this ruling, if made, is not before us for review.

The defendants object that the plaintiff's second amended petition substituted a new and different cause of action from that stated in his original petition. The latter, to say the least of it, is an extremely inartificial and awkwardly framed pleading. The allegations of the second amended petition differ from those of the...