Holliday v. Jackson

• Decision Date: 20 April 1886
• Citation: 21 Mo.App. 660
• Parties: S. N. HOLLIDAY, ADMINISTRATOR, Respondent, v. S. P. JACKSON ET AL., Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 660

S. N. HOLLIDAY, ADMINISTRATOR, Respondent,

v.S. P. JACKSON ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the Butler County Circuit Court, GEORGE H. BENTON, Special Judge.

Reversed and remanded.

GEORGE N. BOUGHTON and T. H. MAULDIN, for the appellants: The amended petition is in effect a new action. Buel v. St. Louis Transfer Company, 45 Mo. 526; Scoville v. Glasner, 79 Mo. 449; Story's Eq. Pl. sect. 904. The words wilfully, intentionally, wrongfully, or words of similar import should have been in the instruction. Schmidt v. Denmore, 42 Mo. 225; The State v. Newkirk, 49 Mo. 84. The defendants had a right under a general denial to attack the title set up by the plaintiffs. Greenway v. James, 34 Mo. 326. The list of swamp lands showed title in Stoddard county in 1867. Rev. Stat., sect. 6151; Dale v. Wright, 57 Mo. 110. The sheriff's deed to Ringer and Crumb, being founded upon a general execution against swamp lands belonging to the county, is void. Robbins v. New Madrid County Court, 51 Mo. 82.

C. L. KEATON, for the respondent: The defendant, Malone directed the work, assented to it after it was done, and received the full benefit, and is hence a trespasser. Canifax v. Chapman, 7 Mo. 175; Allred v. Bray, 41 Mo. 448; McNeeley v. Hunton, 30 Mo. 332; McManus v. Lee, 43 Mo. 206; Murphy v. Wilson, 44 Mo. 313; Ullman v. Railroad, 67 Mo. 118; Dooley v. Kansas City, 82 Mo. 444; Cooper v. Johnson, 81 Mo. 483. There was no error in instructing the jury to find for any trespass committed by the defendants at any time within three years from the twenty-third day of November, 1881, the date of filing the original petition. The suit was commenced then for the same cause of action, describing the same trespass by the same parties, same time, etc., and the amended petition was only a different statement of the same cause of action, inserting other allegations material to the case, and did not change substantially the claim of the plaintiffs. Rev. Stat., sect. 8567. And could have been made expressly to save the statute of limitation. Lottman v. Bennett, 62 Mo. 159; Henry v. Lowe, 73 Mo. 96 98; Young v. Glasscock, 79 Mo. 575, 580. And this amendment might have been made at any time before final judgment. Rev. Stat., sects. 3567, 2573; Young v. Glasscock, 79 Mo. 575, 580; Rev. Stat., sect. 3921; Welday v. Jones, 79 Mo. 171. And, again, the defendants made no objection to the amended petition on the ground of departure, but refiled their original answer, a general denial, and went to trial on these issues, and the first we hear of the objection to the amended petition is in the instruction of the defendants and the motion for new trial; the objection, if any, came too late--was waived. Scoville v. Glassner, 79 Mo. 449, 452-5; Rev. Stat., sect. 3519; The Southworth Company v. Lamb, 82 Mo. 242 247-8. The words wrongfully and without leave in the petition are sufficient under the statute (Rev. Stat., sect. 3821), with the allegation that the defendants had no interest or right in the lands. Hewitt v. Harvey, 46 Mo. 368; Humes v. The Missouri Pacific Ry. Co., 82 Mo. 321, 328. The defendants can not set up title in Stoddard county, that is justify under Kitchen & Bogy's title, and then attack it. These are inconsistent defences-- the plaintiffs allege that they are the owners of the land and prove it, and the defendants claim no rights under the county. Reed v.Price, 30 Mo. 442; Renshaw v. Lloyd, 50 Mo. 368; Austin v. The Huntsville Coal and Mining Co., 72 Mo. 535, 539-43; Wilcoxson v. Osburn, 77 Mo. 621, 628; Matney v. Graham et al., 59 Mo. 190, 192-3. There was no error in the court trebling the damages, the jury were instructed to find the value and the court should treble the damages or verdict. Henry v. Lowe, 73 Mo. 96. And the burden was on the defendants to show that they had probable cause to believe they had a right on the land, etc. Henry v. Lowe, 73 Mo. 96; Walther v. Warner, 26 Mo. 143; Rev. Stat., sect. 3924. There was no error in refusing the defendants' instructions five and six. The amended petition is the only petition in the case at the trial. Rev. Stat., sect. 3576; Soulard v. City of St. Louis, 40 Mo. 144; Ticknor v. Vorhies, 46 Mo. 110. And relates back to the commencement of the action. Rev. Stat., sect. 3576; Ticknor v. Vorhies, 46 Mo. 110.

THOMPSON, J., delivered the opinion of the court.

This action was originally brought on the twenty-third day of November, 1881, by the plaintiff Holliday, as administrator of the estate of Louis V. Bogy, deceased, and by the other plaintiffs joining with him as heirs at law of Louis V. Bogy, deceased, to recover damages for the trespass of cutting and carrying away timber from certain lands, of which it was alleged the said Louis V. Bogy, in his lifetime was the owner, and of which the plaintiffs were, at the time of the taking, the owners. On the twenty-fourth of September, 1883, the plaintiffs filed an amended petition setting up the same trespasses, but claiming treble damages, and framing their allegations so as to state a case within the statute giving treble damages for cutting down or carrying away timber. Rev. Stat., sect. 3921. The answer was a general denial. There was a trial before a jury and a verdict against both defendants in the sum of five hundred and fifty dollars, upon which the court gave judgment, in conformity with the prayer of the petition, in the sum of $1,650, trebling the damages. Both defendants have appealed to this court.

I. There was a demurrer because of the joinder of Holliday as party plaintiff, which the court overruled. This does not present any question for review, because the defendants waived the objection by pleading over.

II. The action, being upon a statute for a penalty or forfeiture where the action is given to the party agrieved, it was subject to the limitation of three years prescribed in section 3231, Revised Statutes.

In view of the filing of the amended petition, it became a material question whether this period of limitation reached back three years from the date of the filing of the original petition, or from the date of the filing of the amended petition. The court refused an instruction offered by the defendant to the effect that the jury should not take into consideration any timber taken prior to September 24, 1880, which was three years prior to the filing of the amended petition, but gave an instruction which authorized them to give damages for the value of all timber cut and carried away at any time during three years prior to the twenty-third day of November, 1881, the date of the filing of the original petition. If the amended petition amounted to nothing more than a different or more formal statement of the same cause of action, these rulings were correct; but if it set up a substantially different cause of action, then the filing of it was equivalent to the bringing of a new action, so far as regards the running of the statute of limitations, and the rulings were incorrect. It is clear beyond any doubt that the amended petition states a different cause of action from the original petition. In Scoville v. Glasner (79 Mo. 449), it is laid down in substance that the test by which to determine whether an amended petition states a new cause of action, is to consider, (1) Whether the same evidence will support both petitions; (2) Whether the same measure of damages will apply to both. In this case neither of these conditions exists. The evidence which will support a petition for a common law trespass quare clausum fregit, or de bonis asportatis, will not support a petition for treble damages under the statute. In the former case no element of wilfulness, malice, or negligence is necessary to charge the defendant. He may have committed the trespass under a mistaken view of his legal rights, but he will none the less be liable to the plaintiff for the actual damage which the latter has sustained. He may have had probable cause to believe, in the case where the trespass consisted in cutting and removing timber, that he was cutting and removing it from his own land, a thing which might easily occur owing to a mistake as to boundary lines; yet this might be no defence to the action at common law, although the mistake were brought about by the plaintiff himself. Pearson v. Inlow, 20 Mo. 322. Yet under the terms of section 3924, Revised Statutes, it would be a good defence to an action under the statute, so far as to reduce the recovery to single damages and costs. Moreover, the measure of damages in the two sections is essentially different; in the one it being the value of the thing taken, and in the other treble the value of the thing taken. But the action under the statute carries with it another incident which does not pertain to the action at common law. The judgment in the action at common law is enforced by execution, the same as ordinary judgments in civil cases; but, by the terms of section 3926, Revised Statutes, the judgment in the action under the statute may be enforced by committing the defendant to jail until the judgment and the costs are paid, or until he is relieved under the provisions of the law relating to insolvent debtors. Such being the difference between the two actions, the one highly penal and enforced by the arrest and imprisonment of the body of the defendant, and the other having for its object merely to restore to the plaintiff what he has lost and enforcing his judgment by ordinary execution, in which imprisonment of the debtor's body is prohibited--there can be no room to doubt that the one is essentially a different action from the other, and that an amendment which changes the action from that at common law to that under the statute, states an entirely new and different cause of action.

III. It may be material to consider, in view of another trial, the objection that there was not sufficient evidence to support the verdict as against ...