Schroll v. Noe

• Citation: 297 S.W. 999
• Decision Date: 13 August 1927
• Docket Number: No. 4138.,4138.
• Parties: SCHROLL v. NOE et al.
• Court: Court of Appeal of Missouri (US)

297 S.W. 999

SCHROLL v. NOE et al.

No. 4138.

Springfield Court of Appeals, Missouri.

August 13, 1927.

Rehearing Denied September 22, 1927.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by John F. Schroll, receiver for the Farmers' State Bank & Trust Company of Decatur, against W. W. Noe and Addle B. Noe. Judgment for plaintiff against defendant first named, case dismissed as to defendant last named, and defendant first named appeals. Reversed and remanded, with directions.

Spradling & Dalton, of Cape Girardeau, for appellant.

H. C. Blanton, of Sikeston, for respondent.

COX, P. J.

The Farmers' State Bank & Trust Company is an Illinois corporation of Decatur, Ill., and John F. Schroll is receiver in charge of the bank. Suit was filed by this plaintiff against the two defendants in Scott county. The case was dismissed as to Addle B. Noe, and judgment went for plaintiff against W. W. Noe. From that judgment he has appealed.

The original petition in this case was in two counts and declared upon two promissory notes. Defendant W. W. Noe filed an answer, which contained, among other things, an allegation that a judgment had been obtained in the state of Illinois by this same plaintiff against this defendant and Addle B. Noe upon these same notes, and that said judgment was still valid and binding, and pleaded the same as a bar to this action. Upon the filing of this answer the plaintiff amended his petition by adding a count on the judgment on each note and alleging that he did not know whether he was entitled to recover on the notes or on the judgments rendered in Illinois upon these notes, but alleged that he was entitled to recover on one or the other. The defendant then moved to strike out the entire amended petition on the ground that the cause of action had been changed. This was overruled, and defendant then refused to plead further. The court heard plaintiff's evidence, and rendered judgment finding for plaintiff on all the counts, and rendered judgment for the full amount alleged on all of them, to wit, $2,000, but to be satisfied by the payment of $1,000. The sum of $1,000 appears to be the amount actually due upon the debt represented by the notes.

The only question here is whether a party can amend a petition which declares upon a promissory note by adding a count declaring upon a judgment rendered upon the same note, and plead in the alternative, and ask recovery upon one or the other. Our statutes permitting amendments and the decisions of our courts construing them are very liberal. The question of permitting amendments generally is one that lies largely in the discretion of the trial court, and his action in permitting an amendment will not be disturbed unless it appears that he has abused that discretion. This principle, however, does not permit a party to substitute an entirely different cause of action under the guise of an amendment, but where the recovery sought is based upon a debt and only one recovery is asked, we see no reason why a party cannot plead in the alternative, and allege that the debt has been reduced to one of two forms, and ask recovery upon the debt in the form in which the evidence shall show it to have been reduced. The debt in this case was evidenced by two promissory notes. If these notes had been reduced to judgment, that fact did not change the debt. It remained the same, and the plaintiff was entitled to satisfaction thereof. If a former suit had been filed and an invalid judgment rendered on these notes, the recovery in this case should be upon the notes. If the judgment were valid, the recovery should be upon the judgment. Technically speaking, a valid judgment upon a note merges the cause of action which existed upon the note into the judgment, and recovery must then be had upon the judgment and not upon the note. This, however, does not extinguish the debt evidenced by the note, but only...