State ex rel. Noe v. Cox

• Decision Date: 30 July 1929
• Docket Number: 28621
• Parties: The State ex rel. W. W. Noe v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

19 S.W.2d 695

323 Mo. 520

The State ex rel. W. W. Noe v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 28621

Supreme Court of Missouri

July 30, 1929

Writ quashed.

Spradling & Dalton for relator.

(1) "There are two tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action: First, whether the same evidence will support both petitions, and, second, whether the same measure of damages will apply to both. If these questions are answerable in the affirmative, it is an amendment; if the negative, it is a substitution." Liese v Meyer, 143 Mo. 547; Heman v. Glann, 129 Mo 325; Scovill v. Glasner, 79 Mo. 449; Ross v Land Co., 162 Mo. 317. (2) The cause of action on the notes having been reduced to a valid judgment which remained unreversed, no further action could be maintained on the notes, McKnight v. Taylor, 1 Mo. 282; See v. See (Mo.), 242 S.W. 951; Bircher v. Doemler, 204 Mo 554; Savings Bank v. Tracy, 141 Mo. 252. (3) The judgment rendered in the Illinois Court on the said two notes and other notes was a valid and subsisting judgment, and this was conceded by plaintiff in the second amended petition and by defendant in his answer to the original petition. Crimm v. Crimm, 162 Mo. 544; Bank v. White, 220 Mo. 717. (4) Relator properly proceeded in this case by filing a motion to strike out the amended petition. Mfg. Co. v. Gerardi, 166 Mo. 142. (5) A motion to strike out an entire pleading when directed at the sufficiency of such pleading served the purpose of a demurrer. Paxon v. Talmage, 87 Mo. 13; Shohoney v. Railroad, 231 Mo. 131; Paddock v. Sames, 102 Mo. 226.

Harry C. Blanton for respondents.

(1) On certiorari the Supreme Court will consider only the pleadings, evidence and facts as recited by the Court of Appeals. State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19; State ex rel. St. Regis Co. v. Reynolds, 200 S.W. 1039; State ex rel. McNulty v. Ellison, 278 Mo 42; State ex rel. Dick Co. v. Ellison, 287 Mo. 139. (2) For conflict of decisions, the Supreme Court will pass only on rulings actually made. State ex rel. Metropolitan Co. v. Daues, 297 S.W. 951. (3) To review a judgment of the Court of Appeals, it is not the province of the Supreme Court to determine how the Court of Appeals should decide the cause, or to say whether the judgment was right or wrong, but only to say whether the decision was in conflict with decisions of the Supreme Court. State ex rel. Natl. Bank v. Ellison, 266 Mo. 423; State ex rel. Ry. Co. v. Ellison, 204 S.W. 396; State ex rel. Smith v. Reynolds, 216 S.W. 773; State ex rel. Seminary v. Ellison, 216 S.W. 967; State ex rel. Abbott v. Bradley, 223 S.W. 98; State ex rel. Arel v. Farrington, 272 Mo. 157; State ex rel. Amer. Co. v. Reynolds, 287 Mo. 697; State ex rel. Utz v. Daues, 287 S.W. 606; State ex rel. Winters v. Trimble, 290 S.W. 117. (4) An alleged error not assigned or considered by the Court of Appeals cannot be reviewed by the Supreme Court on certiorari. State ex rel. United Rys. v. Allen, 240 S.W. 117; State ex rel. Agricultural Co. v. Allen, 254 S.W. 194; State ex rel. Lehrack v. Trimble, 308 Mo. 597. (5) The amendment allowed by the trial court was manifestly proper. (a) It is permissible to amend the petition by adding new causes of action thereto if the original cause of action is retained and the new is stated in a separate and additional count. Secs. 1221, 1280, R. S. 1919; Steele v. Brazier, 123 S.W. 482; Morrison v. Herrington, 120 Mo. 665; Sain v. Rooney, 125 Mo.App. 176; Kanan v. Wright, 270 S.W. 650; 31 Cyc. 365. (b) A petition not originally framed in the alternative may be so amended as to convert it into one of that character, provided the relief claimed is not inconsistent, nor of a wholly different character, nor against different parties. Prehm v. Porter, 165 Mo. 115; Pattison, Mo. Code Pleading, par. 1118. (c) It is permissible to amend a petition upon a note to one for goods sold and delivered, or vice versa, where the petition does not set up a different cause of action and where the note was given for the goods. Roullard v. Gray, 159 P. 457, 30 Cal.App. 757; Smith v. Vaughn, 89 So. 303; Beasley v. Padgett, 110 S. E. (Ga.App.) 739; Bartow Guan Co. v. Adair, 116 S. E. (Ga.App.) 342; Darby v. Bank, 253 S.W. 341. (d) It is proper pleading to add by amendment a count of a judgment to a count on the claim on which the judgment is based and vice versa. Teberg v. Swenson, 32 Kan. 224; Smith v. Continental Co., 283 S.W. 1083; Miner Lith. Co. v. Wagner, 177 Mass. 404; King v. Burnham, 129 Mass. 598; Henderson v. Staniford, 105 Mass. 504; Goodrich v. Bodurtha, 6 Gray (Mass.) 323; Downer v. Shaw, 22 N.H. 125; Thompson v. Minford, 11 How. Pr. (N. Y.) 273.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

This is an original proceeding in certiorari, commenced in this court, in which the relator seeks the quashal of the opinion and judgment of the Springfield Court of Appeals rendered in a certain cause entitled, "John F. Schroll, Receiver for the Farmers State Bank & Trust Company, respondent, v. W. W. Noe, appellant," lately ruled by said Court of Appeals upon an appeal taken from a judgment entered against the appellant in said cause (relator herein), W. W. Noe, in the Circuit Court of Scott County, Missouri. Upon the application of relator, this court issued our writ of certiorari, pursuant to which writ the respondents certified the record of said Court of Appeals in said appealed cause to this court for our review, and this certiorari proceeding was submitted to this division of our court, resulting in an opinion (to which one of the judges of this Division dissented) directing that the record of said Court of Appeals in the said appealed cause be quashed. Thereafter, the respondents, by motion timely filed herein, applied for a rehearing of this certiorari proceeding, which rehearing was granted, and the proceeding has been resubmitted and reassigned to the writer hereof to express the opinion of this court.

The respondents, in their opinion rendered in the appealed cause, thus state the applicable facts and the legal question which was before said Court of Appeals for decision: "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 Addie 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."

Following the statement of the applicable facts, the opinion of respondents then states the legal conclusions reached by the said Court of Appeals in the appealed cause, as follows:

"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 changes the form of action for recovery.

"Our statute (Sec. 1254, R. S. 1919) authorizes pleading in the alternative, and had plaintiff filed the amended petition as his original petition when he began the suit, we should have no hesitancy in holding that he was warranted in doing so, under our statute authorizing alternative pleading. We have found no case in this State passing upon the question whether, after...