Midwest Ins. Corporation v. Schroeder

• Decision Date: 20 February 1945
• Docket Number: No. 26748.,26748.
• Citation: 185 S.W.2d 660
• Parties: MIDWEST INS. CORPORATION v. SCHROEDER.
• Court: Missouri Court of Appeals

185 S.W.2d 660

MIDWEST INS. CORPORATION v. SCHROEDER.

No. 26748.

St. Louis Court of Appeals. Missouri.

February 20, 1945.

Appeal from St. Louis Circuit Court; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Action by the Midwest Insurance Corporation against Otto R. Schroeder for the balance due on an account for the amount of insurance premiums agreed to be paid by defendant, who filed a counterclaim for the amount of an alleged overpayment in settlement of the account. Judgment for plaintiff, and defendant appeals.

Affirmed.

Fred S. Hall, Dale Reaban, and W. O. Hall, all of St. Louis, for appellant.

John T. Ross and Louis Balbach, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for the balance due upon an account between plaintiff and defendant.

Plaintiff is a corporation which serves as general agent and local representative for a number of insurance companies, while defendant is an insurance broker who formerly placed his business with plaintiff corporation under an arrangement whereby the policies applied for would be issued and turned over to defendant, who was then expected to deliver the policies to the respective applicants, collect whatever premiums were due, and make remittance to plaintiff's office.

The case originated in the justice's court for the Fifth District of the City of St. Louis upon the filing of a statement in which plaintiff charged the following for its cause of action:

"That at the special instance and request of defendant, it caused to be written certain policies of insurance, the premiums for which defendant promised and agreed to pay. That after allowing defendant all just credits due thereon, there still remains due and unpaid to plaintiff by defendant for the reasonable value of the premiums for said policies of insurance, the sum of $305.87. That plaintiff has made demand on defendant for payment of same, but that notwithstanding said demand, defendant has failed and refused and still fails and refuses to pay same. An itemized statement is hereto attached and made part hereof and marked Plaintiff's Exhibit A."

While the petition alleged, as will be noted above, that an itemized statement or bill of items of the account was attached thereto and made a part thereof, the fact is that such a statement was never filed in the justice's court, but only after the case had reached the circuit court on appeal.

Following the institution of the action in the justice's court for the Fifth District, the case was sent on change of venue to the justice's court for the Seventh District, where defendant filed an answer and counterclaim in which he denied that he was indebted to plaintiff as claimed in its petition, but alleged instead that in the settlement of his account with plaintiff, he had overpaid the latter in the sum of $241.70, for which amount he prayed judgment against plaintiff.

Meeting with an adverse decision in the justice's court, defendant appealed to the circuit court, wherein, upon a trial to a jury, a verdict was returned in favor of plaintiff on its cause of action for the aggregate amount of $406.04, and also in favor of plaintiff on defendant's counterclaim. Judgment was entered in accordance with the verdict; and defendant's appeal to this court has followed in the proper course.

When the case was called for trial in the circuit court, which was after the filing of plaintiff's itemized statement or bill of items of the account, defendant filed what he denominated a demurrer, but which was in reality a motion to dismiss the case upon the ground of the alleged insufficiency of plaintiff's statement or petition. The motion was promptly overruled; and the whole controversy on this appeal relates to the question of whether there was a sufficient statement or petition to serve as the foundation of the action so as to invest the court with jurisdiction to render the judgment against defendant.

Briefly stated, it is defendant's contention that the statement or petition filed in the justice's court was insufficient to constitute the statement of a cause of action so as to confer jurisdiction on the justice's court; and that if the justice's court had no jurisdiction, the circuit court could neither have derived jurisdiction by the appeal, nor thereafter have created jurisdiction for itself by permitting the filing, in the circuit court, of plaintiff's itemized statement or bill of items of the account.

Plaintiff argues, on the other hand, that the statement or petition as filed in the justice's court, even without the itemized statement or bill of items of the account, was sufficient to state a cause of action so as to confer jurisdiction on the justice's court; and that in any event it was proper for the circuit court, in the furtherance of substantial justice, to permit the filing, in such court, of the itemized statement or bill of items of the account in order to supply any deficiency or omission in the statement or petition as originally filed in the justice's court.

The question of pleading in a justice's court is dealt with by Sections 2571, 2572, R.S.Mo.1939, Mo.R.S.A. §§ 2571, 2572.

Section 2571 contains the familiar provision that no formal pleadings on the part of either plaintiff or defendant shall be required in a justice's court, but that before any process shall be issued in any suit, the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded.

Section 2572 provides that if the suit is founded on an account, a bill of items of the account shall be filed; that in...