Hutchins v. Priddy, 7344.

• Decision Date: 10 March 1952
• Docket Number: No. 7344.,7344.
• Citation: 103 F. Supp. 601
• Parties: HUTCHINS v. PRIDDY et al.
• Court: U.S. District Court — Western District of Missouri

103 F. Supp. 601

HUTCHINS v. PRIDDY et al.

No. 7344.

United States District Court W. D. Missouri, W. D.

March 10, 1952.

COPYRIGHT MATERIAL OMITTED

Harry R. Freeman and Kuraner, Freeman & Kuraner, all of Kansas City, Mo., for plaintiff.

Sam Mandell, Popham, Thompson, Popham, Mandell & Trusty, all of Kansas City, Mo., for defendant John Sullivan.

RIDGE, District Judge.

In this action, originally commenced in the courts of the State of Missouri, plaintiff demanded damages of defendants Earl V. Priddy and L. B. Lamb, only, in the sum of $10,000, for personal injuries allegedly sustained by him, as a result of negligence of said defendants. Service of process on the claim so made was had on those defendants under the nonresident motorist statute of that State. Secs. 506.200-506.320, RSMo 1949, V.A.M.S. Said defendants did not enter an appearance in the state court action, but made default. Thereafter, plaintiff filed an amended complaint in the state court, joining defendant John Sullivan, as an additional party to the action, and increased his demand for damages therein to $15,000. Service of process issued on the amended complaint was only had on defendant Sullivan; likewise under the nonresident motorist statute, supra. No further process was ever issued or served herein on defendants Priddy and Lamb than as first above stated. Affidavit of plaintiff's counsel is that a copy of the amended complaint was mailed to said defendants at their last known address before filing.

In due course, defendant Sullivan perfected removal of this action to this United States District Court, on the ground that he, being the only defendant in the instant action against whom proper service of process has been had, is, under Section 1448, Title 28, U.S.C.A., entitled to maintain this removal proceeding. Said section authorizes removal of an action where one of several defendants has been duly served with process in a state court, when service has not been perfected as to the remaining defendants.

Plaintiff has filed motion to remand, on the ground that a joint claim is made against all defendants in the above amended complaint; that defendants Priddy and Lamb being subject to the jurisdiction of the state court in this action by virtue of service of process based on the original complaint, and said defendants being non-residents of the State of Missouri, not joining in the removal proceeding, this Court acquired no jurisdiction of the instant action solely on removal proceedings had by nonresident defendant Sullivan. To sustain jurisdiction in this Court, defendant Sullivan asserts that the amended complaint herein sets up a "new or additional claims" against all parties defendant, under the Civil Code of Missouri, Chap. 506, RSMo 1949, V.A.M.S.; that defendants Priddy and Lamb being in default to the original claim made against them, for failure to appear in the state court, at the time of the filing of the amended complaint, new service of process was essential and should have been issued on said amended complaint, directed to said defendants, as provided in Section 506.100, RSMo 1949, V.A. M.S., else the state court could not have proceeded to adjudicate the claim made therein as against all of the defendants. Under such circumstances, defendant Sullivan contends this removal proceeding was properly maintained.

As a general rule, it is held that the right to remove an action from a state court to the federal courts exists when "the action assumes the shape of a removable case in the court in which it is brought." Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 18 S.Ct. 264, 267, 42 L.Ed. 673. Such a situation usually is brought about after some appearance has been made in the state court, by plaintiff voluntarily dismissing his action against a resident defendant; by plaintiff's announcement that he is ready for trial, notwithstanding that no service of process has been obtained upon the only resident defendant; or by amendments made to pleadings so as to bring the action for the first time within federal court jurisdiction. Powers v. Chesapeake & O. R. Co., supra. In the case at bar, neither of the first two situations exists. If right of removal here exists, it must rest on the latter proposition.

Here, plaintiff first made a joint claim in the state courts of Missouri against two of the defendants herein. After default by said original defendants, plaintiff added a new party defendant to such joint claim and increased the demand thereof by way of amendment to his original complaint. As first commenced, there is no question but that the state court acquired jurisdiction over the persons of the original defendants and the subject-matter of this action. What we must now determine is the legal effect of the amendment plaintiff so made to his original claim in the state court, and whether, as a consequence thereof, this cause assumed the shape of removability.

Before progressing to that subject, we believe certain fundamental principles so well grounded in procedure in courts of this land that they need no citation of authorities to sustain them should be called to mind. It is hornbook that an amended pleading which is complete in itself and does not refer to a prior pleading supersedes the prior pleading so that it no longer remains a part of the record in an action; and where the method of serving an amended pleading is regulated by statute, such method must be followed. 71 C.J. S., Pleading, §§ 321, 412, 413. Further, that the judgment entered in a tort action cannot segregate or apportion the liability of joint tort-feasors; but must be in one amount and jointly and severally against each and all of the defendants against whom a joint liability is established. 49 C. J.S., Judgments, § 36, p. 88. With those fundamental principles in mind, we turn to the Civil Code of Missouri, to determine the effect of the amendment of claim here considered.

The "Civil Code of Missouri", Chap. 506, RSMo 1949, V.A.M.S., in the main was patterned after the Federal Rules of Civil Procedure. There are, however, certain distinguishing features between them. So far as here pertinent, the Missouri Code provides for "one form of action", Sec. 506.040, RSMo 1949, V.A.M.S.; and, that a "pleading which sets forth a claim for relief * * * shall contain a short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. If a recovery of money be demanded, the amount shall be stated." (Emphasis added.) 509.050, R.S. Mo.,V.A.M.S. Amendment of pleadings is provided for "as a matter of course at any time before a responsive pleading is filed and served". 509.490, R.S.Mo., V.A.M.S. When a defendant duly summoned fails to appear in an action, "an interlocutory judgment (may) be given against him by default", 511.110, R.S.Mo., V.A.M.S., and, "whenever such interlocutory judgment shall be rendered for the plaintiff, the damages or other relief shall not be other or greater than that which he shall have demanded in the petition, as originally filed and served on defendant". 511.160, R.S. Mo., V.A.M.S. "Every pleading subsequent to the original petition" is required to be served on a party in default for failure to appear if that pleading asserts a "new or additional claims for relief against them" (and) "shall be served (therewith) in the manner provided for service summons in (that) code." (Parentheses added.) 506.100, R.S.Mo., V.A.M.S.

It is observed that in the foregoing enumerated sections of the Civil Code of Missouri, as is true in the Federal Rules of Civil Procedure, the ancient and traditional legal term, "cause of action" is not referred to or used. Instead, the words, "claim", "claims", "claim for relief", and "damages not to exceed amount claimed", and like terms are key words. To what extent that change in terminology in the Missouri Code has done violence to the orthodox "cause of action" concept as may be found in previous decisions of the courts of that State, see Kohnle v. Paxton, 268 Mo. 463, 188 S. W. 155, we need not here speculate, or philosophize upon, but rest content to abide an eventual decision of Missouri courts concerning the matter. Moore, in his "Federal Practice under the New Federal Rules," has this to say concerning that subject (Vol. 1, p. 145): "This can only mean that the draftsmen, by use of the phrases `claim' or `claims for relief' hoped that such...