Thompson v. Mosely

• Decision Date: 31 January 1860
• Citation: 29 Mo. 477
• Parties: THOMPSON et al., Appellants, v. MOSELY, Respondent.
• Court: Missouri Supreme Court

29 Mo. 477

THOMPSON et al., Appellants,

v.MOSELY, Respondent.

Supreme Court of Missouri.

January Term, 1860.

1. A court may, on such terms as may be proper, amend a pleading by striking out the name of a party. If the ends of justice require it, it must permit such amendment.

Appeal from Andrew Circuit Court.

This, as originally instituted, was a suit against Robert C. Mosely by William N. Thompson and eleven others, including Sinclair K. Miller and Benjamin F. McCart. The plaintiffs alleged that on the 6th of March, 1858, they became securities of defendant Mosely and one A. M. Mitchell on five several promissory notes for $1,000 each, bearing date said March 6, 1858, and payable six months after date to one John Gooding; that said Mosely and Mitchell failing to pay said notes, the plaintiffs had the same to pay to the parties to whom they were assigned. They prayed judgment for the amount of the notes. The court sustained a demurrer to this petition, and gave leave to amend. Afterwards an amended petition was filed. In the title of this petition all the plaintiffs' names are set forth. The body of the petition is substantially as follows: “Plaintiffs, Sinclair K. Miller and Benjamin N. McCart, by leave of court had for said purpose for an amended petition in the above entitled cause, state that “on the 6th of March, 1858, they were partners; that on said day at the request of defendant Mosely they as partners, together with others, signed and executed five several promissory notes for $1,000 each; which were dated March 6, 1858, and were payable to John Gooding or order six months after date, and were executed by A. M. Mitchell and said Mosely as principals, and were signed by the plaintiffs Miller and McCart as the securities of said Mitchell and Mosely; that Mitchell and Mosely failed to pay said notes at maturity; that the plaintiffs Miller and McCart, still being partners, were compelled to and did pay of the amount of said notes the sum of $455.55 to the legal holders of said notes; that neither the defendant Mosely nor said Mitchell has repaid said sum of money to plaintiffs or any part thereof. Plaintiffs pray judgment for said sum with interest.

The action of the court upon this petition is set forth below in the opinion of the court.

Vories & Vories, for appellants.

I. The court should have allowed the amendment. The plaintiffs Miller and McCart had a right to strike out any part of their petition independent of any leave or discretion of the court. (See 16 Mo. 225.) The defendant could not have been injured by the amendment.

Woodson, Hall & Loan, for respondent.

I. The motion to strike out a portion of the plaintiffs' names was properly overruled. The amended petition set out a new and independent cause of action. By striking out those names, there would have been pending a new suit. To allow this would not be “in furtherance of justice;” especially where a large amount of property had been attached and sold. If the motion was properly overruled, the demurrer was rightly sustained.

EWING, Judge, delivered the opinion of the court.

The questions in this case arise upon the action of the court in overruling appellants' motion to strike out all the names of the parties plaintiff except Miller and McCart; and in sustaining the demurrer to the amended petition.

Under the amended petition filed by the plaintiffs--who are appellants--it is very evident that the only real parties to the action, or the only parties who show any cause of action against the defendants, are the plaintiffs Miller and McCart. The petition does not pretend to allege any claim or cause of action in favor of the other parties; and their only connection with the suit is that of simply being named as plaintiffs in entitling the cause. Had the action been brought in this way originally, we think there could be no doubt that on the trial, or even after judgment, the names of these parties could have been stricken out; (R. C. 1855, p. 1253, § 3, 6;)...