Morrison Mfg. Co. v. Roach & Green
| Decision Date | 01 February 1904 |
| Parties | MORRISON MANUFACTURING COMPANY, Appellants, v. ROACH & GREENE, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.
Order affirmed.
W. F Calfee and R. N. Johnson for appellants.
If plaintiff's original petition had not been dismissed, its replication and counterclaim would probably not have authorized the recovery of judgment against defendants but would have only extinguished their demand. Pattison's "Missouri Code Pleading," sec. 766; Coombs Co v. Block, 130 Mo. 668.
Childer Bros. for respondent.
(1) Plaintiff can not recover on a cause of action which is stated only in his reply, and not stated in his original petition. Pattison's "Missouri Code Pleading," p. 394, sec. 763; Crawford v. Spencer, 36 Mo.App 78; Stepp v. Livingston, 72 Mo.App. 175, l. c. 179; Hill v. Mining Co., 119 Mo. l. c. 30. (2) The reply of plaintiff to defendant's set-off and counterclaim as to the note of $ 587.46, was clearly a departure from its original petition, and is not admissible. Bliss, Code Pleading (2 Ed.), sec. 396; Magruder v. Admire, 4 Mo.App. 133; Suman v. Inman, 3 Mo.App. 596; Pattison's "Missouri Code Pleading," p. 354 sec. 676; Mortland v. Holton, 44 Mo. 58. Where there is a single defendant and he interposes a set-off to plaintiff's demand, the plaintiff can not set up in his reply another demand distinct from that on which his action is based, and which he might have included in his petition. Pattison's "Missouri Code Pleading," p. 354, sec. 676; Dawson v. Dillan, 26 Mo. 395.
Plaintiff sued defendants in two counts on two promissory notes, one for $ 149.30 and the other for $ 587.46. Defendants had made an assignment prior to the institution of the suit and plaintiff had presented and had both notes allowed by the assignee, thus merging them into judgments. Defendants answered plaintiff's petition admitting the execution of the notes, but setting the allowance and merger as in bar of an action on the notes themselves. They further answered by setting up that they had delivered certain valuable collateral to plaintiff with the notes. That enough of them had been collected to pay the notes. Defendants then pleaded a counterclaim and demanded an affirmative judgment against plaintiff for $ 449.30. Plaintiff then filed an amended petition in which it declared on the judgments. On motion of defendants this amended petition was stricken out on the ground that it changed the cause of action in the original petition. Plaintiff thereupon dismissed its original petition and filed a replication to defendants' answer, denying defendant's counterclaim and again set up the judgment before the assignee "by way of counterclaim to defendants' counterclaim;" in other words, plaintiff stated in this replication the cause of action on the judgments as had been alleged in its amended petition and asked judgment for the amount of such judgments. Defendants then filed their reply or answer to plaintiff's reply. The cause was then referred to E. B. Fields, Esq., as referee. Mr. Fields in due time made his report wherein he found for plaintiff the sum of $ 385.81. Defendants filed objections to the report in which many exceptions were taken thereto, but the trial court overruled them and confirmed the report and rendered judgment for the amount so found. Defendants then filed their motion for new trial setting up several grounds why it should be granted, among others, that the court "erred and improperly permitted plaintiffs after its petition and amended petition had been held bad, to file and maintain by way of replication, a set-off and counterclaim, the same matter as alleged as a cause of action in its original petition." The court sustained the motion on that ground and plaintiff appealed from that order to this court.
The action taken by the trial court on the case made as just set out, involves a construction of section 4499, Revised Statutes 1899, which reads as follows: "Whenever a set-off or counterclaim shall be filed in an action, as provided in this chapter, it shall be deemed in law and treated as an independent action begun by the defendant against the plaintiff, except in the cases enumerated in section 4488 of this chapter; and, the dismissal or any other discontinuance of the plaintiff's action, in which such set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue such set-off or counterclaim, but the defendant so filing such set-off or counterclaim may, notwithstanding such discontinuance or dismissal of the plaintiff's action, prosecute the same against the plaintiff in the same manner and with the same force and effect as if he had originally begun the action on his set-off or counterclaim against the plaintiff; and, in such case, the defendant so prosecuting such set-off or counterclaim shall be subject to all the rules applicable to plaintiffs in civil actions and other procedure, and the set-off or counterclaim shall be proceeded with, in all respects, as if the action had originally been begun by the defendant against the plaintiff."
In our opinion the first view entertained by the trial court was correct and that it erred in granting the motion for new trial on the ground that plaintiff could not set up in its replication to defendants' answer and counterclaim, the same matter that was the foundation of its action as set out whether in the original petition which it dismissed, or in the amended petition which was stricken out. The effect of the statute is that where a plaintiff dismisses his action, anything on defendant's part which he has claimed in his answer and which was proper matter of set-off, or of counterclaim to plaintiff's cause of action, should be considered as though it was the basis of an action by such defendant, as though he was a plaintiff, against such plaintiff as though he was a defendant. When a defendant, after the petition has been dismissed by the plaintiff, shall elect to continue to prosecute his set-off, or his counterclaim notwithstanding such dismissal, he takes upon himself the prosecution of an action in which he becomes to all intents and purposes a plaintiff, and the plaintiff becomes a defendant. The statute aforesaid reads that, such defendant shall be subject to all the rules applicable to plaintiffs in civil actions and other procedure and that his claim shall be proceeded with in all respects as if he had originally begun the action against the plaintiff. The statute is as broad as could well be made and we can not see any reason why the plaintiff should not be allowed to use as set-off or counterclaim, if it be otherwise...
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