Estes v. Fry
| Decision Date | 17 December 1901 |
| Parties | ESTES v. FRY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. David H. Eby, Judge.
Reversed and judgment here.
W. H Biggs and Ball & Sparrow for appellants.
(1) Under the pleadings and the evidence, the court should have given the declaration of law asked for by defendants, and its verdict and judgment should have been for defendants. First. The original suit was an ordinary action at law on a promissory note. The so-called amended petition was not an amendment, but a complete change of cause of action. It was changed from an action at law to one in equity. The same proof would not sustain both. Scoville v. Glasner, 79 Mo. 449; Lampkin v. Collier, 69 Mo. 170; Maloney v. Building Ass'n, 57 Mo.App. 384; Holliday v. Jackson, 21 Mo.App. 660; Sims v Field, 24 Mo.App. 557; Phillips v. Broughton, 30 Mo.App. 148; Baker v. Railroad, 34 Mo.App. 98. Second. The filing of the amended petition, by plaintiff, was an abandonment, by him, of the original petition. Young v. Woolback, 33 Mo. 110; Hawkins v. Massee, 62 Mo. 552; Rand v. Grubbs, 26 Mo.App. 595; Ticknar v. Voorhies, 46 Mo. 110. Therefore, when defendants filed their motion to strike out plaintiff's amended petition, and pending the consideration of same by the court plaintiff asked and obtained leave to withdraw the same and the court at the same time sustained defendants' motion to strike out at that point, the plaintiff was out of court. Davis v. Hall, 90 Mo. 665; 3 Estes, Pleading, sec. 4778; Leese v. Sherwood, 21 Cal. 151. Third. The trial court erroneously permitted the plaintiff to refile his original petition. We know of no law permitting such practice, but if such be the law and the practice, the original petition having been abandoned by the plaintiff by filing an amended petition, the refiling of the original petition simply amounted to the re-institution of the suit, and the statute of limitations continued to run from March 10, 1873, the date of last payment on note, to the date of refiling original petition, to-wit, March 18, 1890. (2) The judgment rendered by the court against defendants is erroneous. It was a suit in equity. The only judgment the court could render was a judgment of foreclosure. The court could not legally render both a money judgment and also a judgment of foreclosure. Weary v. Wittmer, 77 Mo.App. 546; McClarg v. Phillips, 49 Mo. 315; Pemberton v. Johnson, 46 Mo. 342. (3) The court committed error in sustaining the findings and report of the referee. First. Because the findings and report of the referee are not responsive to the order of the court. Second. Because the referee passed upon notes not submitted to him. Third. Because the only matter referred to the referee was the note in suit of $ 1,000. Therefore, all the payments claimed to have been made and allowed by the referee should have been placed upon the note of $ 1,000 in suit. Fourth. Because the payments allowed by the referee, if credited on the $ 1,000 note, would more than pay it.
Wm. H. and Davis Biggs and M. G. Reynolds also for appellants.
(1) Clearly the averments of the petition and answer make the action one of equitable foreclosure. In such a case a judgment of foreclosure only is permissible. On principle this must be true. The action is in rem, in which a personal judgment is improper. Fithian v. Monks, 43 Mo. 502; McClurg v. Phillips, 49 Mo. 315; Pemberton v. Johnson, 46 Mo. 342; Weary v. Wittmer, 77 Mo.App. 546. (2) The judgment against Fry's estate for the amount found by the referee to be due on the note was unauthorized for the further reason that the right of action on the note was barred by the statute of limitations. The authorities are abundant that an amended petition which abandons the old cause of action and states a new one, is equivalent to the commencement of a new suit, which would necessarily operate as a dismissal of the original. Hester v. Mullen, 107 N.C. 724; Crofford v. Cothran, 2 Sneed. 492; Railroad v. Carpenter, 27 Iowa 487; Vanderzer v. McMullen, 28 Ga. 339; Holmes v. Trout, 1 McLean (C. C. U. S.), 10; Miller v. McIntyre, 1 McLean, 85; Dudley v. Price, 10 B. Mon. (Ky.), 84; Buel v. Transfer Company, 45 Mo. 562; Lottmann v. Barnett, 62 Mo. 159; Tilly v. Tobbein, 103 Mo. 477; Mann v. Scroer, 50 Mo. 306. (3) But conceding that the nonsuit was suffered in the original suit, the one-year statute can not avail the plaintiff, for the reason that the new action must be the same as the old. Here the original suit was a simple action at law on the note and the new suit was in equity to foreclose a mortgage alleged to have been given to secure the note. The two actions were essentially different in character, and as we have attempted to show, admitted of essentially different judgments.
W. M. Williams and Pearson & Pearson for respondent.
(1) (a) The action or first count of plaintiff's petition is not barred by the statute of limitation, because it was commenced by plaintiff within one year from the date of the judgment of dismissal of his suit, on the same note, and between the same parties, in the Ralls Circuit Court. Assuming that the filing of the amended petition was a dismissal or abandonment of plaintiff's former suit (which we do not concede), this present action would even then have been commenced within one year from such dismissal or abandonment, and would thereby, under the statute, be saved from the statute of limitation. R. S. 1889, sec. 4285; Lumber Co. v. Lumber Co., 72 Mo.App. 248; Bryan v. Fudge, 63 Mo. 389; Wood v. Mortman, 85 Mo. 304; State ex rel. v. O'Gorman, 75 Mo. 378; Chouteau v. Roose, 90 Mo. 165. (b) The action on the second count of plaintiff's petition could not, in any way, be barred by the statute of limitation, because it is an action in equity to foreclose a deed of trust, in the nature of a mortgage. Cape Girardeau County v. Harbison, Admr., 58 Mo. 90. (2) The second point in appellant's brief is not well taken, because this was not a suit in equity to foreclose a mortgage, asking a personal judgment over. It is a suit by a petition in two counts, stating two causes of action; one at law, the other in equity. It was so treated by the parties at the trial. Upon the first count there was entered a judgment establishing the demand against the estate of Jacob Fry, and costs were adjudged against the plaintiff. R. S. 1899, secs. 191 and 211. The second count is an equitable procedure for the foreclosure of a deed of trust in the nature of a mortgage. The judgment thereon is simply a decree of the court finding the amount due on the debt, and declaring the same to be a lien on the property described in the petition, and decreeing "that the same be foreclosed, and that the said land or so much thereof as may be necessary, be sold for the purpose of satisfying said debt and costs of these proceedings .... and that the special execution may issue for the purpose of carrying the decree herein into effect." There was no objection made, nor any point saved, as to the form of this judgment, in plaintiff's motion in arrest. And they cannot be heard question any irregularity in it now. Respondents contend, however, that they are the proper judgments to be rendered on the respective counts in plaintiff's petition. There was not rendered in this case the kind of a judgment that appellants attack. (3) There is no merit, in the third point of appellants' brief, to-wit: that the findings and the report, of the referee are not responsive to the order of the court; or, that the referee passed on notes not submitted to him. The only facts submitted by the court to the referee was the issue as to whether the note sued on had or had not been fully paid off and discharged, prior to the institution of this action; and if not, then to find the amount due and remaining unpaid on said note, at the time of his said findings. The referee's report was as direct and responsive as it was possible to have been, to-wit: "I find due on the note in suit herein, the sum of five thousand eight hundred twenty-five and seventeen one-hundredths dollars, bearing ten per cent compound interest." The referee considered other notes not submitted to him, to the extent only, of determining whether certain payments, set up in defendants' answer, were to be credited on them, or the note sued on. This was made necessary by the averments and allegations in defendants' answer. (4) As to appellants' fourth point, we assert no such point was saved in the defendants' exceptions to the report of the referee; neither was the court's attention called to any such error on the part of the referee, in the motion for a new trial. If it has any merit, it can not be raised for the first time in this court. Smith v. Haley, 41 Mo.App. 611; Johnson v. Wingfield, 35 Mo.App. 437.
This is a suit begun on April 3, 1890, upon a promissory note, dated March 10, 1871, for one thousand dollars, with ten per cent interest per annum from date, the interest if not paid to be compounded annually and added to the principal, made by Jacob Fry, to the order of James Wigginton, and by him indorsed to Fielden Estes. Fry died before the institution of the suit and the action is against his executors. Estes died since the appeal was taken, and the action has been revived in the name of William P. Stark, his executor. The petition is in two counts. The first count is an action at law based on the note, and after appropriate allegations in such actions, further alleges the institution of a prior suit on the same note in 1881 and that the plaintiff suffered a nonsuit in said prior action on March 18, 1890, and the institution of this suit on the day of March, 1890. The second count is in equity, asking...
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