Hutcherson v. Thompson

• Decision Date: 20 December 1938
• Docket Number: 35222
• Citation: 123 S.W.2d 142,343 Mo. 884
• Parties: L. F. Hutcherson, Appellant, v. A. D. Thompson, H. T. Smith, H. S. Smith, J. W. Haldeman and Will Hall
• Court: Missouri Supreme Court

123 S.W.2d 142

343 Mo. 884

L. F. Hutcherson, Appellant, v. A. D. Thompson, H. T. Smith, H. S. Smith, J. W. Haldeman and Will Hall

No. 35222

Supreme Court of Missouri

December 20, 1938

Appeal from Marion Circuit Court; Hon. Edmund L. Alford Judge.

Reversed and remanded (with directions).

Rendlen White & Rendlen, P. J. Fowler, L. F. Cottey, A. D Campbell and John Campbell for appellant.

(1) The court erred in sustaining defendants' (respondents') motion to dismiss the amended petition and plaintiff's cause of action, and in dismissing plaintiff's action and amended petition, and entering final judgment against plaintiff and for defendants, for the following reason: The only difference between the original petition and the amended petition was that the first petition alleged that over a certain period of time deposits and withdrawals were made and stated the balance remaining when the bank closed and sued for that balance; whereas the amended petition stated specifically each deposit, the amount and date thereof and each withdrawal, the date and amount thereof, and the balance remaining, which was the same in amount as the sum stated in the first petition. Thus the identity of the cause of action was retained, and a judgment on the first petition would be res judicata of the amended petition, or vice versa; the amended petition was therefore an amendment, not a departure; and being an amendment it related back to the time of the filing of the original petition. Walker v. Wabash Ry. Co., 193 Mo. 453, 92 S.W. 83; Jensen v. Hindberg, 92 S.W.2d 109; Schwab Clothing Co. v. Ry. Co., 71 Mo.App. 249; Bricken v. Cross, 163 Mo. 449, 64 S.W. 99; State ex rel. v. Cox, 19 S.W.2d 698; Liese v. Meyer, 143 Mo. 556, 45 S.W. 282. (2) The court erred in sustaining defendants' motion to dismiss and in dismissing plaintiff's cause of action. Ivie v. Bailey, 5 S.W.2d 50; Secs. 5345, 5364, 5381, 5382, R. S. 1929; Houston v. Wilhite, 27 S.W.2d 774; Bank v. Hill, 148 Mo. 392.

Walter Hilbert, H. S. Rouse, Waldo Edwards, Mahan, Mahan & Fuller and Noah W. Simpson for respondents.

The court did not commit error in sustaining defendants' motion to strike the amended petition and dismiss plaintiff's cause of action. When the motion was filed more than three years had elapsed from the final accrual date of plaintiff's cause of action, if any, viz.: January 30, 1932, when the bank closed, and July 1, 1935, when the motion was filed. The original petition was fatally defective in that it did not contain the necessary averments to constitute a legal cause of action under the penal statutes, Section 5381, Revised Statutes 1929. That status continued, and plaintiff permitted the three year limitation statute to complete against his cause of action under that penal statute, if he ever had one. Secs. 5381, 5382, R. S. 1929; Fusz v. Spaunhorst, 67 Mo. 264; Briggs v. Spalding, 141 U.S. 132; Bank v. Hill, 148 Mo. 397; Utley v. Hill, 155 Mo. 232; State ex rel. v. Wabash Ry. Co., 83 Mo. 148; Wood v. Western Union Tel. Co., 59 Mo.App. 240; Commission v. Telegraph Co., 180 Mo.App. 631; Fichtner v. Mohr, 16 S.W.2d 379, 22 S.W.2d 1045; Vroom v. Thompson, 55 S.W.2d 1924; Bricken v. Cross, 163 Mo. 453; Kennayde v. Pac. Ry., 45 Mo. 258; Casey v. Transit Co., 116 Mo.App. 260, 205 Mo. 721; Adox v. Western Union Tel. Co., 171 Mo.App. 34; Black's Law Dictionary (3 Ed.), p. 413; Madden v. Mo. Pac. Ry. Co., 192 S.W. 457; Russell v. Nelson, 317 Mo. 148; Bradshaw v. Telegraph Co., 150 Mo.App. 711; Priest v. Capitain, 236 Mo. 462; Cummins v. K. C. Pub. Serv. Co., 334 Mo. 672; Arpe v. Mesker, 323 Mo. 640; Parker v. Staley, 55 S.W.2d 332.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Action at law against the directors of a failed bank to recover deposits lost by reason of the alleged insolvency of the bank. The suit was filed May 19, 1933, in the Circuit Court of Lewis County. By change of venue it reached the Circuit Court of Marion County where, on April 15, 1935, plaintiff filed an amended petition. On motion of defendants the court struck out said amended petition and dismissed plaintiff's cause of action. Plaintiff appealed. The only question presented on this appeal is as to the propriety of the court's action in striking out plaintiff's amended petition and dismissing his cause of action. We shall refer to the parties here as plaintiff and defendants as they were styled below.

The original petition was in 49 counts, the first seeking recovery for the aggregate amount claimed to have been lost by plaintiff himself and the others for losses sustained by other depositors who had assigned their claims to him. The amended petition is in 197 counts. It seeks recovery for the same losses but sets out in a separate count each deposit of each depositor. For the purposes of this appeal it will be sufficient to set out the first count of each petition, which are as follows:

"1st Count

"Par. 1. Plaintiff states that at all of the times herein mentioned the Home Savings Bank of La Belle, Missouri, was a corporation, organized and existing under and by virtue of the laws of the State of Missouri, and as such was engaged in the general banking business in the town of La Belle in Lewis County, Missouri; that the defendants at all times herein mentioned were and for a long period preceding said date were the duly elected, qualified and acting directors of said bank and during said period of time were and had been in the actual charge of the business thereof; that during all of said time said Home Savings Bank of La Belle, Missouri, was insolvent and in a failing condition, all of which the defendants well knew.

"Par. 2. Plaintiff, during said period of time, deposited various sums of money in said Home Savings Bank to his credit and at the date of the closing of said bank, to-wit, January 30, 1932, the balance on deposit in said bank in favor of and due to plaintiff was $ 1179.31.

"Par. 3. Plaintiff further states that on said last named date said bank was duly placed in the hands of the State Finance Department of the State of Missouri, because said bank was insolvent, and ever since said date the same has been and still is in charge of said Finance Department of the State of Missouri; that on account of the insolvent condition of said bank, plaintiff has been unable to collect any part of the above named balance due him by said bank.

"Par. 4. WHEREFORE, Plaintiff prays judgment against the defendants and each of them for said sum, together with interest at the rate of 6 per cent per annum from the date said bank closed, and for the costs of this action."

"AMENDED PETITION

"1st Count

"Paragraph 1. Plaintiff, for amended petition, states that at all of the times herein mentioned the Home Savings Bank of La Belle, Missouri, was a corporation, organized and existing under and by virtue of the laws of the State of Missouri, and as such was engaged in the general banking business in the town of La Belle in Lewis County, Missouri; that the defendants at all times herein mentioned were and for a long period preceding said date were duly elected, qualified, and acting directors of said bank and during all of said period of time were and had been in the actual charge of the business thereof; that during all of said time said Home Savings Bank of La Belle, Missouri, was insolvent and in a failing condition, all of which the defendants and each of them well knew.

"Paragraph 2. Plaintiff, on the 30th day of October, 1931, deposited in said Home Savings Bank of La Belle to his credit the sum of $ 2,000.00, and said sum was by said bank on said date received and credited to plaintiff's account therein; that thereafter, and before the closing of said bank, said plaintiff withdrew from said bank the sum of $ 1100.69 of said deposit and that on the said January 30th, 1932, at the date of the closing of said bank, there was due to plaintiff the sum of $ 899.31 on account of said deposit.

"Paragraph 3. Plaintiff further states that on January 30th, 1932, said bank was closed and by the defendants duly placed in the hands of the State Finance Department of the State of Missouri, because said bank was insolvent, and ever since said date the same has been and still is closed and in charge of said finance department of the State of Missouri; that on account of the insolvent condition of said bank and because said bank was and still is so closed, the deposits in said bank have not been paid to the owners of said deposits, and the depositors of said bank have been unable to collect said deposits, and plaintiff has been unable to collect said sum so due him from said bank.

"Paragraph 4. WHEREFORE, plaintiff prays judgment against the defendants and each of them for said sum of $ 899.31, together with interest at the rate of 6 per cent per annum from the date, January 30th, 1932, said bank closed, and for the costs of this action."

In the original petition the second count repleads by reference paragraphs 1 and 3 of the first count, alleges a deposit made by H. M. Lipes and the assignment of his claim to plaintiff and prays judgment as in the first count. In the amended petition counts 2, 3 and 4 are like count 1, except each alleges a separate deposit, giving date and amount thereof. The 5th count repleads by reference paragraphs 1 and 3 of the first count, alleges a deposit by H. M. Lipes and withdrawal of a named portion, giving dates and amounts and balance remaining when the bank closed, alleges the assignment by Lipes of his claim to plaintiff and prays judgment.

Plaintiff does not set out in his abstract of record the other counts of either petition but states that in the original petition counts 3 to 49, inclusive, are in the same langauge as count 2 thereof...