Wasson v. Boland
| Citation | 136 Mo. App. 622,118 S.W. 663 |
| Parties | WASSON v. BOLAND et al. |
| Decision Date | 19 April 1909 |
| Court | Court of Appeal of Missouri (US) |
An original claim filed by plaintiff in the probate court against the estate of B., deceased, was for "Balance on certificate of deposit of Bank of L., Iowa, a copartnership doing business under the firm name and style of the Bank of L.," and the certificate was attached as an exhibit. An amendment pleaded various statutes of Iowa, limiting the life of banking corporations to 20 years and for enforcement of claims against partnerships and proceeded on the theory that the corporate life of the Bank of L. had expired before the bank received plaintiff's money, that it was then acting as a partnership, and that the claim survived to plaintiff as against decedent's estate on his liability as a partner. Held, that the amendment was the statement of a new cause of action and was within the statute of limitations.
4. LIMITATION OF ACTIONS (§ 127)—AMENDMENT OF PLEADINGS—NEW CAUSE OF ACTION.
A test as to whether an amendment states a new cause of action within the statute of limitations is whether evidence to prove the one will support the other.
5. LIMITATION OF ACTIONS (§ 127)—AMENDMENT OF PLEADINGS — NEW CAUSE OF ACTION.
That the cause of action set up in an amendment might have been joined in the same petition in a separate count, or that the subject-matter of each is the same, does not determine that the cause of action in the amendment is not new within the statute of limitations.
6. PARTNERSHIP (§ 41)—CORPORATIONS—EXPIRATION —LIABILITY OF STOCKHOLDERS AS PARTNERS.
By the laws of Iowa the stockholders of a corporation which continues to do business after its charter has expired cannot be held as partners in the absence of a statute imposing such liability.
Appeal from Circuit Court, Putnam County; Geo. W. Wanamaker, Judge.
Proceeding by Mary A. Wasson against John S. Boland and another, administrators of the estate of John Boland, deceased. From a judgment for plaintiff, defendants appeal. Reversed.
N. A. Franklin and Thos. B. Davis, for appellants. B. L. Robison, Ira B. Hyde, and Arthur M. Hyde, for respondent.
Plaintiff filed a demand against the estate of John Boland, deceased, in the probate court of Putnam county, based on a bank certificate of deposit. The case was appealed to the circuit court, where the plaintiff had judgment for the amount, less credits.
It appears: That the Bank of Lineville did business as a corporation in Iowa until, at the expiration of 20 years, its franchise expired under the terms of the statute of that state. That after the expiration of the life of the charter the bank continued business, as before, for several years, when it became insolvent and was placed in charge of a receiver, who paid a portion of the sum due on the certificate. It was during the period after the expiration of the charter and before the insolvency, while doing business as it had always done, the deposit was made and the certificate issued which is the basis of this controversy. The certificate was issued to Francis Walker and by him assigned to this plaintiff. It appeared in evidence that certain of the officers and stockholders of the bank stated themselves to be partners, and that a suit was instituted in this state on a claim of the bank, in which it was alleged that it was a partnership. It also appeared that the application for a receiver stated the bank to be a partnership. But it further appears that to meet the demands of creditors the receiver made assessments against the stockholders under the banking law of Iowa. It does not appear that Boland knew of any claim or admission of partnership.
The demand, when presented or filed by plaintiff in the probate court, only lacked four days of being barred by the statute of limitations for the presentation of claims against estates of deceased persons. After the limitation period expired, plaintiff filed an amended petition. The law in this state is that, though an action be brought before the period of limitation has expired, if an amended petition be filed after the period, changing the cause of action, it will be regarded as "a fresh suit upon a new cause of action," and will be barred. Buel v. Transfer Co., 45 Mo. 562; Fields v. Maloney, 78 Mo. 172; Scovill v. Glasner, 79 Mo. 449; Sims v. Field, 24 Mo. App. 557. It is held that a failure to object to the amendment will be a waiver. There was no objection in this case. But that relates merely to the question of waiver of right to make the amendment. It does not affect the matter of the running of the statute of limitations, as will be seen from the opinion of Judge Hall in Sims v. Field, supra. So the question is whether the amendment changed the cause of action. The object of both the original and amended petition was to hold the estate on the ground of partnership. The original claim was as follows:
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