Koller v. Ranger Ins. Co.
| Decision Date | 18 July 1978 |
| Docket Number | No. 39147,39147 |
| Citation | 569 S.W.2d 372 |
| Parties | Ralph W. KOLLER, Appellant, v. RANGER INSURANCE CO., Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Robert J. Blackwell, Farmington, for appellant.
Raymond R. Roberts, Roberts & Roberts, Farmington, for respondent.
Plaintiff has appealed the trial court's order dismissing his original petition with prejudice. We reverse and remand with instructions to grant plaintiff leave to file an amended petition. The issue: Did the trial court commit reversible error by denying plaintiff leave to amend?
Our review is limited to the procedural question and does not reach the merits of plaintiff's petition.
Plaintiff's petition was filed July 16, 1976. Defendant moved to dismiss, charging failure to state a claim and improper venue. Various motions and memoranda followed. On March 25, 1977 the trial court dismissed plaintiff's petition for failure to state a cause of action. Plaintiff promptly moved for a new trial and to set aside and vacate, with suggestions in support thereof, and requested leave to file an amended petition pursuant to Civil Rule 67.06, VAMR. Attached was a proposed amended petition. The trial court summarily denied plaintiff's motion and request without argument. Since the dismissal was not specified to be without prejudice under Civil Rule 67.03, VAMR, it was with prejudice and was an adjudication upon the merits. Travelers Indemnity Company v. Chumbley, 394 S.W.2d 418(1) (Mo.App.1965). Plaintiff appeals from this final judgment, contending the trial court abused its discretion by refusing to grant him leave to amend. We agree.
In Thompson v. Fiber-Lum, Inc., 464 S.W.2d 514, l.c. 517 (Mo.App.1971), we said: "While there are decisions which hold that under certain circumstances a court may exercise its discretion in granting, or refusing to grant, leave to amend, an examination of the cases reveals that in general the discretion is affected by the timeliness of the application . . . ." Here, it was plaintiff's original petition which was held to be deficient (rightly or wrongly we are not called upon to decide) and in accordance with the letter as well as the spirit of Civil Rules 67.05 (now 67.06) and 55.53, the general policy is stated in Dietrich v. Pulitzer Publishing Co., Mo., 422 S.W.2d 330(8) (Mo.1968): "Ordinarily when a first pleading is ruled to be insufficient in a trial court, the party is afforded a reasonable time to file an amended pleading if desired." See also, Civil Rules 55.33(a) and 67.06, VAMR.
The trial court's record shows plaintiff made a timely request for leave to file his amended petition and had been given no previous opportunity to do so before the court dismissed his petition. Plaintiff showed good faith by providing the trial court with his amended petition and giving reasons the amendment should be permitted. There is nothing in the record to indicate prejudice to the defendant or harmful consequence of delay.
Defendant fails to prove and we find no authority to support his contention the trial court did not err. In Cady v. Hartford Accident and Indemnity Co., 439 S.W.2d 483(6) (Mo.1969), the...
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American Civil Liberties Union/Eastern Missouri Fund v. Miller
...422 S.W.2d 330, 334 (Mo.1968); Boyd v. Kansass City Area Transp. Authority, 610 S.W.2d 414, 416-17 (Mo.App.1980); Koller v. Ranger Ins. Co., 569 S.W.2d 372, 373 (Mo.App.1978).22 See Frame v. Boatmen's Bank of Concord Village, 782 S.W.2d 117 (Mo.App.1989).23 Rule 52.06; Rule 52.04; Daiprai v......
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...adjudication on the merits equivalent in effect to a jury verdict." See Committee Note to Rule 67.03.The holding in Koller v. Ranger Ins. Co., 569 S.W.2d 372 (Mo.App.1978) [argued by the defendants] that "since the dismissal was not specified to be without prejudice under Civil Rule 67.03, ......
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...fact applicable to the purported claim, and the trial court did not err. Appellant relies on several decisions: Koller v. Ranger Insurance Co., 569 S.W.2d 372 (Mo.App.1978); Dietrich v. Pulitzer Publishing Co., 422 S.W.2d 330 (Mo.1968); Boyd v. Kansas City Area Trans. Authority, 610 S.W.2d ......
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