New First Nat. Bank v. C. L. Rhodes Produce Co.

• Decision Date: 30 April 1931
• Citation: 37 S.W.2d 986,225 Mo.App. 438
• Parties: NEW FIRST NATIONAL BANK, A CORPORATION, AND S. O. POTTORFF, RECEIVER, APPELLANTS, v. C. L. RHODES PRODUCE CO., RESPONDENT
• Court: Missouri Court of Appeals

37 S.W.2d 986

225 Mo.App. 438

NEW FIRST NATIONAL BANK, A CORPORATION, AND S. O. POTTORFF, RECEIVER, APPELLANTS, v. C. L. RHODES PRODUCE CO., RESPONDENT

Court of Appeals of Missouri, Springfield

April 30, 1931

Appeal from the Circuit Court of Greene County.--Hon. John Schmook Judge.

Transferred to the supreme court.

Frank B. Williams and A. P. Stone, Jr., for appellants.

(1) A pleading may be amended "at any time before final judgment" to conform to the evidence, "when such amendment does not change substantially the claim or defense." Section 1274, R. S. 1919; Schwab Clothing Co. v. Railway Co., 71 Mo.App. 241; Kerr v Bell, 44 Mo. 120; Whiting v. Land and Sheep Co., 265 Mo. 374, 382; Reifschneider v. Beck, 148 Mo.App. 725; Wechmeir v. Yontz, 215 Mo.App. 240 246. The amount for which judgment is prayed may be amended. Sprague et al. v. Follett, 90 Mo. 547; Worthington Live Stock Co. v. Coal Co., 169 Mo.App. 230. (2) An amended pleading, which is complete in itself, and does not refer to, or adopt, the prior pleading superseded it; and, the original pleading ceases to be a part of the record, being in effect abandoned or withdrawn, and becoming functus officio, subsequent proceeding in the case being regarded as based on the amended pleading. Ross v. Mineral Land Co., 162 Mo. 317, 329; State ex rel. Johnson v. Hiller et al., 295 S.W. 132, 133; Westinghouse Electric Co. v. Tweedle, 240 S.W. 863, 864; Von Eime v. Fuchs, 8 S.W.2d 824, 826. (3) This cause must be transferred to the Supreme Court of Missouri, since the amount "in controversy" by which the jurisdiction is determined, is $ 7950, the amount claimed by plaintiffs in their amended petition. Const. of Mo., art. 6, sec. 12, and amendment of 1884, secs. 5, 2418, R. S. 1919; Washer et al. v. Bullitt County, 101 U.S. 558, 28 L.Ed. 249, 250; Journal & Tribune Co. v. U.S., 254 U.S. 581, 584, 41 S.Ct. 202; State v. Reynolds et al., 213 S.W. 804, 806; Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 116; State ex rel. v. Rombauer, 130 Mo. 288, 290.

W. D. Tatlow for respondent.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is a suit to recover the amount due on certain checks and for money had and received. The original petition was filed by plaintiff bank on November 19, 1927, before it went into the hands of a receiver, and was returnable to the January term, 1928, of the Greene county circuit court. This petition was in two counts. The first count charged that on March 8, 1927, defendant deposited in plaintiff's bank four checks of John W. Rhodes & Company, each in the sum of $ 2620, making a total deposit of $ 10,480; that the consideration of said checks was four carloads of eggs, shipped from Springfield, Missouri, to Chicago, Illinois, in the name of C. L. Rhodes Produce Company on memorandum bill of lading, to which bank drafts were attached; that before the bank drafts were collected defendant had stopped delivery of said four carloads of eggs and afterwards sold and disposed of said eggs and appropriated the proceeds in the sum of $ 10,600, to its own use; that when said deposit of $ 10,480 was made on March 8, 1927, it was entered as a credit to defendant's account, and defendant thereafter drew checks against said account to the full amount thereof and on April 4, 1927, the account was closed; that all four checks so deposited as aforesaid, were dishonored by the drawee bank for insufficient funds, of which fact defendant was duly notified and subsequently the drawer made two of them good but the remaining two checks were not made good. Judgment was prayed in the sum of $ 5240. The second count was as follows: "For another and further cause of action plaintiff repeats and re-alleges the allegations of paragraph 1, of count 1, and further says that defendant is indebted to plaintiff in the sum of five thousand two hundred forty ($ 5,240) dollars, for money paid to defendant by plaintiff and for money had and received of plaintiff by defendant, to defendant's use, on the 9th day of March, 1927, for which plaintiff prays judgment, together with interest from said date at the rate of six (6%) per cent per annum and for costs."

The answer is of considerable length. It contains a general denial of the substantive allegations of the petition and further pleads that on March 9, 1927, defendant was owner of the four carloards of eggs which it sold to John W. Rhodes & Company; that said John W. Rhodes & Company gave defendant four checks for $ 2620 each on plaintiff bank and deposited four drafts with bills of lading attached, in plaintiff bank and received credit therefor; that plaintiff knew said four checks (or drafts) were for the purchase price of said eggs and that, "the four carloads of eggs belonged to the defendant, C. L. Rhodes Produce Company, and not John W. Rhodes & Company, until they were paid for, and that the said four checks given to it, as aforesaid, by the said John W. Rhodes & Company, were given in payment of the purchase price thereof, and with the understanding that the title to the said four cars of eggs should remain in C. L. Rhodes Produce Company until paid for, and that if the said checks were not paid, that the defendant would not in fact receive payment for its eggs, and hence the said plaintiff was at all times charged with knowledge of the fact that the proceeds received from the sale of said eggs in Chicago could not lawfully be used by the said John W. Rhodes and Company to pay any indebtedness or overdraft which the said bank claimed the said John W. Rhodes and Company then and there owed the plaintiff bank; and with full knowledge of this fact the plaintiff is seeking to unlawfully appropriate and convert to its own use the proceeds from the sale of defendant's eggs by claiming and asserting that the defendant is indebted to it to the amount of said checks. That to permit the plaintiff to recover on the said checks would enable it to appropriate the property of this defendant to the payment of the indebtedness which it claims that John W. Rhodes & Company owes it, and for which this defendant was not at any time obligated or responsible therefor."

Thereafter S. O. Pottorff was appointed receiver for plaintiff bank and on June 23, 1928, the court sustained a motion requiring the receiver to be joined as party plaintiff and on the same day the cause was, by order of court, referred to the Hon. F. M. McDavid to hear and determine...