State Johnston v. Hiller

• Citation: 295 S.W. 132
• Decision Date: 03 May 1927
• Docket Number: No. 19834.,19834.
• Parties: STATE ex rel. JOHNSTON v. HILLER et al.
• Court: Court of Appeal of Missouri (US)

295 S.W. 132

STATE ex rel. JOHNSTON v. HILLER et al.

No. 19834.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Rehearing Denied June 7, 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 Court...