Nelson v. First Nat. Bank

• Decision Date: 07 June 1904
• Parties: NELSON v. FIRST NAT. BANK OF MONTGOMERY.
• Court: Alabama Supreme Court

36 So. 707

139 Ala. 578

NELSON v. FIRST NAT. BANK OF MONTGOMERY.

Supreme Court of Alabama

June 7, 1904

Appeal from Circuit Court, Montgomery County; John R. Tyson, Judge.

Action by Margaret S. Nelson against the First National Bank of Montgomery. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought by the appellant, Margaret S. Nelson against the appellee, the First National Bank of Montgomery and was instituted on March 20, 1896. The complaint, as originally filed, contained but one count, which was in words and figures as follows: "The plaintiff claims of the defendant the sum of twenty thousand dollars for money of the plaintiff had and received by the defendant on, viz., the 26th day of June, 1890, for the use and benefit of the plaintiff, with interest from, to wit, June 26th, 1890." Subsequently, on December 21, 1896, the plaintiff amended the complaint by adding a second count thereto. The last paragraph of the second count was stricken therefrom. The substance of this count is sufficiently stated in the opinion. Thereafter, on June 9, 1897, the plaintiff amended the complaint by adding a third count thereto, which was in words and figures as follows: "(3) And the plaintiff claims of the defendant the further sum of, to wit, twenty thousand dollars, with interest from, to wit, the 27th June 1890, for goods, wares, and merchandise and chattels sold to the defendant at its request on, to wit, 27th June, 1890, and plaintiff avers that the cause of action herein is the same as that embraced in the other counts of the complaint." The defendant pleaded the general issue and several special pleas. The substance of the special pleas, which are reviewed on the present appeal, and the facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the following written charges: "If the jury believe the evidence, they must find a verdict for defendant." The plaintiff duly excepted to the giving of this charge. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Gunter & Gunter, for appellant.

J. M Chilton, Horace Stringfellow, and Watts, Troy & Caffey, for appellee.

DOWDELL J.

The suit in this case was begun on the 20th day of March, 1896, with a complaint containing a single count, claiming for money had and received by the defendant on the 26th day of June, 1890, for the use of the plaintiff. On the 21st of December, 1896, the plaintiff, by leave of the court, amended the complaint by filing a second count, claiming the same sum as claimed in the first or original count; and by leave of the court on June 9, 1897, she further amended the complaint by filing a third count, in which the same sum is claimed as in the first and second counts, for goods, wares, and merchandise sold on June 27, 1890, and avers that the cause of action thereunder is the same as that embraced in the first and second counts. On motion of defendant that part of the second count beginning with the words, "And plaintiff avers that in 1892," and going down to the end of the count, was stricken out. As the second count remained after eliminating the part stricken on motion, it read as follows: "The plaintiff claims of the defendant the further sum of $20,000, with interest thereon from, to wit, June 26, 1890, for this, to wit: that theretofore and then the plaintiff was a married woman, the wife of one O. O. Nelson, and theretofore was the owner and was possessed, as a separate estate under the laws of Alabama, of a parcel of real estate in the city of Montgomery known and called the 'Pollard Place,' and had sold the same to the Savannah, Americus & Montgomery Railroad Company for $30,000, $10,000 of which was paid in cash, and for the remainder she had taken two notes of the purchaser, for $10,000 each, payable to the plaintiff at one and two years from date, with interest from date, at the Banking House of Moses Bros., Montgomery, Ala., which said notes were duly secured by mortgage made by the purchaser to the plaintiff on the said real estate so sold, and conveying the same to the plaintiff; that on, to wit, the 27th day of June, 1890, she, by written indorsement on said notes, joined in by her husband, and by written transfer, also joined in by her husband, and duly witnessed, assigned, transferred, and sold to the defendant the said notes and the said mortgage, and the real estate therein mentioned, for the consideration of, to wit, $20,000, and handed the said securities and papers to her husband for delivery to the said defendant; that the said O. O. Nelson did so deliver the said notes and securities to the defendant, and were accepted by the said defendant as upon the said sale of plaintiff to it, whereby the defendant became liable to pay the plaintiff the consideration for the transfer of said notes and mortgage, which plaintiff avers was and is, to wit, the sum of $20,000, which plaintiff avers it has never paid, and which is still due and unpaid, with interest thereon from, to wit, the 27th of June, 1890. And plaintiff avers that the cause of action in this count is the same as that sued upon in the first count, and is only a statement of the special facts of the case." That part of this count so stricken on motion contained a narration of a suit in the chancery court of Montgomery county by the plaintiff against this defendant relative to the subject-matter embraced in the present action, but the matter so stricken out did not change the nature and character of the count; that is, the count remained an action for the purchase price of the notes and securities described therein, and in no wise affects the application of the legal principles arising under the several pleas of the defendant upon which the plaintiff joins issue. To the first count, among others, the defendant filed pleas of the general issue and payment; and to the second and third counts, among other pleas, the defendant pleaded the general issue, payment, and statutes of limitation of three and six years. No demurrer or special replication was filed to these pleas of the general issue, payment, and statutes of limitation, but issue was joined on each of them.

The cause of action on which the suit is based arose on the 27th day of June, 1890, and the suit was commenced on the 20th day of March, 1896, thus being within the six-years period. It is evident that at the date of the filing of the second and third counts, respectively, to wit, December 21, 1896, and June 9, 1897, the statutory bar of six years was complete, and furnished a perfect defense to these counts, unless they fall within that class of amendments which relate back to the commencement of the suit. The doctrine of the relation back of amendments to the commencement of a suit is a fiction of the law, and should never be applied where it would operate to cut off a substantial right or defense to new matter introduced by the amendment, though connected with the original cause of action. In the case of People v. Judge of Newaygo Circuit Court, 27 Mich. 138, wherein this doctrine was invoked to meet the defense of the statute of limitations pleaded to the amended declaration, in an opinion rendered by Christiancy, C.J., and concurred in by his associates, it was said: "But long before this amended declaration was filed, or leave to file it applied for, the statute of limitations had taken effect upon and barred the cause of action set forth in it. Had a new suit then commenced for the same cause of action, it is not contended that it could have been maintained; and we see no substantial difference between the commencement of a new suit and the allowance of this amended declaration, under these circumstances, for the same cause of action. It is clear enough that the only purpose and object of allowing the amended declaration, instead of putting the plaintiff to a new action after they had submitted to a nonsuit, which nonsuit had been set aside, was to prevent the statutory bar of the action. We do not think that the statute can be evaded by any such necromancy, and to permit the shallow fiction of a relation back to the commencement of the suit, under such circumstances, to nullify the action of the legislature, would be discreditable to the judiciary."

Statutes of limitation are statutes of quiet, and they are beneficent in that they put an end to disputed claims, prevent litigation, quiet titles, and give rest and repose. No matter what may be the criticisms of the casuist, in the eyes of the law these statutes are no longer regarded as harsh, but furnish a defense as meritorious as any other. While our statutes of amendments are broad and liberal, it is not every amendment allowable under the statute that will relate back to the commencement of the suit, operating to cut off the plea of the statute of limitations as to the matter introduced by the amendment. It seems to be the settled rule that the amendment, in order to come within the doctrine of relation back to the commencement of the suit, must be but a varying form or expression of the claim or cause of action sued on, and the subject-matter of the amendment wholly within the lis pendens of the original suit. If the matter introduced by way of amendment, although it be such as might have been joined in a different count in the original complaint, introduces a new claim or a new cause of action, requiring a different character of evidence for its support, and affording a different defense from that to the cause as originally presented, it will...