State Johnston v. Hiller, 19834.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBennick
Citation295 S.W. 132
PartiesSTATE ex rel. JOHNSTON v. HILLER et al.
Docket NumberNo. 19834.,19834.
Decision Date03 May 1927

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by the State of Missouri, on the relation of Andrew L. Johnston, against Sam S. Hiller and another. From a judgment for defendants, relator appeals. Affirmed.

Andrew L. Johnston, of Kahoka, in pro. per. Charles Hiller and T. L. Montgomery, both of Kahoka, for respondents.

BENNICK, C.

This proceeding, originating as a purported action against the sureties on the official bond of the public administrator of Clark county, Mo., and prosecuted by relator pro se, and without the aid of counsel, came on to be heard upon the following amended pleading, styled "Amended Bill in Equity":

"In the matter of the partnership estate of Lauretta P. Johnston, deceased, and Andrew L. Johnston, George W. Fleming, deceased, public administrator, was in charge of said partnership estate.

"The plaintiff complains of the defendants, and for causes of action alleges:

"For a first cause of action:

"That the counterclaim offered the judge of probate and judgment rendered therefor by aforesaid judge and never adjudicated in any other court was not a counterclaim and was a fraud and cheat perpetrated by attorneys for George W. Fleming and Mollie E. Thomson to defraud and cheat decedents of this estate.

"For a second cause of action:

"That the judgment rendered by the judge of probate for the counterclaim which was procured by the false representations of defendant attorneys to the judge of probate and slipped by the higher courts as merely a question of costs and has no place in the settlement of this estate and should be adjudged void for the reason the aforesaid judgment was procured by fraud and cheat and did not give surviving partner equal protection of the law and was not due process of law. "

"The plaintiff states that he has no adequate remedy at law, in this court.

"Wherefore plaintiff prays to the court, that the judgment for the counterclaim be adjudged void and that decedents be relieved of all expenses they have had, and all money they have had to pay by reason of the litigation over the counterclaim be refunded to them."

The answer of defendants was a general denial.

Notwithstanding the nature of the answer filed by defendants, the following reply was filed by relator:

"For reply to defendant's answer plaintiff alleges his petition as before, and for direct reply plaintiff alleges:

"That the administration of the partnership estate of Johnston & Johnston has not been by due process of law; `surviving partner has been deprived of property without just compensation, and has not received equal protection of the law.'"

When the case was called for trial the defendants objected to the introduction of any testimony on the part of plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection was sustained by the court, and judgment rendered for the defendants, from which plaintiff has appealed.

A number of alleged errors are assigned which in one way or another question the propriety of the ruling of the court upon defendants' demurrer ore tenus. Suffice it to say of all of such assignments that they are without merit. A casual reading of the petition, which we have set out in its entirety, discloses without discussion that no cause of action was stated therein, nor could recourse be had to any of the prior petitions filed in the case in the hope of supplying the necessary averments omitted in the last amended petition, for the reason that, under our Code, when an amended pleading is filed, it must contain all matters necessary for a determination of the action. Section 1283, R. S. 1919; Cohn v. Souders, 175 Mo. 455, 75 S. W. 413; Arkla Lbr. & Mfg. Co. v. Henry Quellmalz Lbr. & Mfg. Co. (Mo. Sup.) 252 S. W. 961; Ward v. Davidson, 89 Mo. 445, 1 S. W. 846.

Furthermore, the filing of an amended pleading constitutes an abandonment of the prior pleadings as well as of all matters not restated in the amendment. Ticknor v. Voorhies, 46 Mo. 110; Arkla Lbr. & Mfg. Co. v. Henry Quellmalz Lbr. & Mfg. Co., supra; Amerland v. Amerland, 188 Mo. App. 50, 173 S. W. 104.

Lastly, the appellant has attempted to inject a constitutional question into the case, although the particular provisions alleged to have been violated are not specifically pointed out, as is required. In order to preserve a constitutional question so as to deprive a...

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21 practice notes
  • Simmons v. Friday, 41257.
    • United States
    • United States State Supreme Court of Missouri
    • 12 Septiembre 1949
    ...Bk. v. C.L. Rhodes Produce Co., 332 Mo. 163, 169, 58 S.W. 2d 742, 744[1, 2], and authorities cited; State ex rel. v. Hiller (Mo. App.), 295 S.W. 132, 133[2]; Wise v. O'Kelley (Mo. App.), 198 S.W. 2d 28, 31[1-3]. Consult our Rule 1.04(b) (352 Mo. appendix i); Laws 1943, p. 369, §§ 36, 43, 44......
  • Simmons v. Friday, 41257
    • United States
    • United States State Supreme Court of Missouri
    • 12 Septiembre 1949
    ...Bk. v. C.L. Rhodes Produce Co., 332 Mo. 163, 169, 58 S.W. 2d 742, 744[1,2], and authorities cited; State ex rel. v. Hiller (Mo. App.), 295 S.W. 132, 133[2]; Wise v. O'Kelley (Mo. App.), 198 S.W. 2d 28, 31[1-3]. Consult our Rule 1.04(b) (352 Mo. appendix i); Laws 1943, p. 369, §§ 36, 43, 44;......
  • Zlotnikoff v. Wells
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Mayo 1927
    ...was properly overruled. [220 Mo.App. 876] Error is next assigned to the giving of instructions Nos. 1 and 2, for plaintiff, the purport [295 S.W. 132] of which we have heretofore indicated. In view of the conclusion we have reached regarding the sufficiency of the evidence to make a case un......
  • Burton v. Phillips, 20340.
    • United States
    • Court of Appeal of Missouri (US)
    • 19 Junio 1928
    ...& Manufacturing Co. [Mo. Sup.] 252 S. W. 961; Amerland v. Amerland, 188 Mo. App. 50, 173 S. W. 104; State ex rel. v. Hiller [Mo. App.] 295 S. W. 132); and that a former pleading, thus abandoned by the filing of an amended one, may be offered in evidence for whatever it is worth, either as a......
  • Request a trial to view additional results
21 cases
  • Simmons v. Friday, 41257.
    • United States
    • United States State Supreme Court of Missouri
    • 12 Septiembre 1949
    ...New First Nat. Bk. v. C.L. Rhodes Produce Co., 332 Mo. 163, 169, 58 S.W. 2d 742, 744[1, 2], and authorities cited; State ex rel. v. Hiller (Mo. App.), 295 S.W. 132, 133[2]; Wise v. O'Kelley (Mo. App.), 198 S.W. 2d 28, 31[1-3]. Consult our Rule 1.04(b) (352 Mo. appendix i); Laws 1943, p. 369......
  • Simmons v. Friday
    • United States
    • United States State Supreme Court of Missouri
    • 12 Septiembre 1949
    ...... nor merely because cestui leaves the trust property with a. trustee. Johnston v. Johnston, 107 Minn. 109, 119. N.W. 652; Matter of Farmers L. & T. Co., 62 N.Y.S. 359, 47 ...635, 64 N.W. 577; 2. Perry, Trusts, p. 1470, sec. 863; Sager v. State Highway. Comm., 125 S.W.2d 89; Crisfield v. State, 55. Md. 192; Pence v. Force, 46 N.J.Eq. ... Co., 332 Mo. 163, 169, 58 S.W. 2d 742, 744[1,2], and. authorities cited; State ex rel. v. Hiller (Mo. App.), 295. S.W. 132, 133[2]; Wise v. O'Kelley (Mo. App.), 198 S.W. 2d 28, 31[1-3]. Consult ......
  • Zlotnikoff v. Wells
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Mayo 1927
    ...... 185 Mo. 330, 84 S.W. 928; Henderson v. St. Louis-S. F. R. Co. (Mo. Sup.), 284 S.W. 788; State ex rel. v. Bland. (Mo. Sup.), 237 S.W. 1018; Battles v. United Rys. Co., 178 Mo.App. 596, 161 ......
  • Burton v. Phillips
    • United States
    • Court of Appeal of Missouri (US)
    • 19 Junio 1928
    ...Quellmalz Lumber & Manufacturing Co. [Mo. Sup.] 252 S. W. 961; Amerland v. Amerland, 188 Mo. App. 50, 173 S. W. 104; State ex rel. v. Hiller [Mo. App.] 295 S. W. 132); and that a former pleading, thus abandoned by the filing of an amended one, may be offered in evidence for whatever it is w......
  • Request a trial to view additional results

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