White v. Sievers
| Decision Date | 09 May 1949 |
| Docket Number | No. 41137.,41137. |
| Citation | 221 S.W.2d 118 |
| Parties | CALVIN W. WHITE, Appellant, v. JOHN F. SIEVERS, and SOUTHEAST STATE BANK, a Corporation, Respondents. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. James W. Broaddus, Judge.
REVERSED AND REMANDED (with directions).
Arthur W. Edwards, Lewis F. Randolph, C.W. Prince and Wm. Dennis Bush for appellant.
(1) Under the New Code the court has no discretion to refuse an amendment, because it states an entirely new remedy. Sec. 847.37, R.S. 1939; Galloway v. Galloway, 169 S.W. (2d) 883; Chestnut v. Mertz, 144 S.W. (2d) 194; Atlantic Lumber Co. v. Southern Pac. R. Co., 2 F.R.D. 313. (2) An amendment changing the form of the action from equity to law is permissible. Thomas v. Sterling Finance Co., 180 S.W. (2d) 788; Friederichsen v. Renard, 247 U.S. 207, 62 L. Ed. 1075, 38 S. Ct. 450; 41 Am. Jur., sec. 307, p. 503; State ex rel. v. McGee, 328 Mo. 1175, 44 S.W. (2d) 36. (3) The addition of a prayer for punitive damages does not change the cause of action. Knight v. Quincy, O. & K.C.R. Co., 120 Mo. App. 311, 96 S.W. 716. Casey v. St. Louis & S.F.R. Co., 146 Mo. App. 614, 124 S.W. 562; Campbell v. Crutcher, 224 S.W. 115; 49 C.J. 527, sec. 697. (4) No departure in the instant case even under the common law. A new count setting up an entirely new remedy can be added by amendment where the action newly pleaded arose out of the same transaction.
W.F. Woodruff and Lucian Lane for respondent Southeast State Bank.
(1) Judgment of Judge Southern of March 4, 1948, dismissing plaintiff's second amended petition was a final, appealable judgment. Since no appeal was taken it became res adjudicata and is not open to review on this appeal. Jones v. Williams, 209 S.W. (2d) 907; Koplar v. Rosset, 214 S.W. (2d) 417; Keller v. Keller, 352 Mo. 877, 179 S.W. (2d) 728; Fenton v. Thompson, 352 Mo. 199, 176 S.W. (2d) 456; Husser v. Markham, 210 S.W. (2d) 405; Edwards v. Sittner, 213 S.W. (2d) 652. (2) The judgment of Judge Broaddus of March 26, 1948, dismissing counts two to seven of plaintiff's third amended petition became a final and appealable judgment when plaintiff's motion to set the dismissal aside was overruled. Since no appeal was taken it was res adjudicata and is not open to review on this appeal. Authorities under Point (1); Husser v. Markham, 210 S.W. (2d) 405; Sec. 126, Civil Code; Rule 3.29 of Supreme Court. (3) The second amended petition was properly dismissed because it was a departure from the first amended petition. Counts two to seven of the third amended petition were properly dismissed because of departure, and because they were exact duplicate of petition already dismissed. Sec. 81, Civil Code; Campbell v. Webb, 356 Mo. 466, 202 S.W. (2d) 35; Brinkman Realty Co. v. Deidesheimer, 201 S.W. (2d) 503; 13 Missouri Law Review 442; Jacobs v. Chicago, P. & St. L.R. Co., 204 S.W. 954; Scoville v. Glasner, 79 Mo. 449; State ex rel. v. Cook, 353 Mo. 272, 182 S.W. (2d) 292; Neville v. D'Oench, 327 Mo. 34, 34 S.W. (2d) 491; Bader v. Beck, 173 S.W. (2d) 647; Mineral Belt Bank v. Elking Lead & Zinc Co., 158 S.W. 1066; Ross v. Cleveland and A. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Heman v. Glann, 128 Mo. 325, 31 S.W. 589; Scott v. Taylor, 231 Mo. 654, 132 S.W. 1149; Dyer v. Harper, 336 Mo. 52, 77 S.W. (2d) 106; Lee v. W.E. Fuetterer Battery & Supplies Co., 323 Mo. 1024, 23 S.W. (2d) 47. (4) The ex parte action of plaintiff on March 31, 1948, in obtaining order overruling the motion to set aside the judgment of dismissal of counts two to seven of the third amended petition, his election to stand on counts two to seven thereof and refusal to plead further, and his voluntary dismissal of count one was a deliberate and intentional default and entitled defendant bank to judgment on its counterclaim. Graves v. Chapman, 248 Mo. 83, 154 S.W. 61; McGrew v. Thompson, 184 S.W. (2d) 994; Sec. 56, Civil Code; Dumey v. Schoeffler, 20 Mo. 325; Creameries of America, Inc., v. Benton, 152 S.W. (2d) 1049; Sec. 67, Civil Code; Terry v. Michalak, 319 Mo. 290, 3 S.W. (2d) 701; Jones v. McGonigle, 327 Mo. 457, 37 S.W. (2d) 892. (5) Plaintiff by his action on March 31, 1948, in standing on counts two to seven of the Third Amended Petition, declining to plead further in the case and dismissing count one had voluntarily defaulted with respect to defendant bank's counterclaim. Anderson v. Briscoe, 201 S.W. (2d) 432; Authorities under Point (4). (6) Plaintiff by his voluntary action on March 31, 1948, selected his own course and was committed to it and he cannot now convict the court of error in its refusal to permit him to switch to an entirely different course through the attempted amended answer and cross petition to the bank's counterclaim. Nulsen v. Natl. Pigments & Chemical Co., 346 Mo. 1246, 145 S.W. (2d) 410; Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W. (2d) 353. (7) The amended answer and cross petition were filed without leave of court as required by Civil Code, Section 81, and were filed more than a year out of time with no showing of excuse or justification for the delay. Secs. 60, 81, Civil Code; Sec. 6(d), Civil Code; Russell v. Nelson, 317 Mo. 148, 295 S.W. 118; Secs. 40, 76, Civil Code; Scullin Steel Co. v. Miss. Valley Iron Co., 308 Mo. 453, 273 S.W. 95. (8) The amended answer and cross petition contained only matters that had twice been dismissed from the case. To have permitted the amendments would not have been in furtherance of justice but would have worked an injustice to defendant bank by permitting plaintiff to continue the course of vexation, harassment, and abuse, apparent from the whole record. Oliver v. Scott, 208 S.W. (2d) 468. (9) The judgment on the pleadings on bank's counterclaim was entered because of plaintiff's voluntary and intentional default and refusal to plead further. It is fully supported by the record. Secs. 55, 56, 67, Civil Code; Creameries of America v. Benton, 152 S.W. (2d) 1049; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 290, 41 S.W. (2d) 1049; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W. (2d) 7; Sec. 1244, R.S. 1939; 49 C.J., sec. 602; Still v. Glass, 222 S.W. 893; Aeolian Co. v. Smith Medcalf Co., 7 S.W. (2d) 447.
The question for decision is one of procedure, and arises under the new Civil Code. Does the new code permit a plaintiff to depart from his original petition and by an amended petition substitute a wholly different claim for the one originally pleaded? Under the old code such an amendment was held improper on the ground of departure, and was not permitted. But we now conclude that the rule against departure has no application under the new code, so this kind of amendment is not barred because of its character. It is subject only to the general rules governing the procedure for making amendments.
The question arises from these circumstances. Plaintiff filed an action for an accounting against the defendants, a bank and its president, alleging he had borrowed money from them at different times, and had deposited certain instruments with them as collateral. He listed the instruments which consisted of mortgage notes, a warranty deed conveying in blank, i.e. without any grantee named, an insurance policy, and shares of stock in a building corporation. He asserted the defendants had collected the proceeds from such collateral in amounts unknown to him. He claimed he has repaid all of his loans in full, and asked for the return of his collateral and for an acounting. Thereafter, depositions were taken at which books and records showing his accounts were ordered produced.
Defendant bank filed a general denial, and a counterclaim on a promissory note asking judgment for $7,712.50 for principal and interest. Plaintiff first filed a general denial in reply to the counterclaim.
Then plaintiff filed his second amended petition which starts the chain of events giving rise to the present dispute. In this petition plaintiff abandoned his original action for an accounting. In six separate counts he alleged the fraudulent conversion of each of his instruments given as collateral or the property represented thereby, and asked for six separate judgments for damages both actual and punitive.
Defendants filed a motion to dismiss this petition on the ground it substituted claims wholly new and different from the one originally alleged, and thus was bad because of such departure. The motion was sustained by the judge then sitting in the assignment division, and the petition was dismissed.
Thereafter, plaintiff refiled his six counts for damages through other pleadings. In his third amended petition he refiled his action for an accounting and joined with it the six counts for damages. A motion to dismiss the counts for damages was filed on the grounds they were the same as those previously pleaded in the second amended petition which had been dismissed by the previous assignment judge, and that they constituted a departure. The motion was sustained and the counts were dismissed. Plaintiff then refused to plead further by petition, and voluntarily dismissed his first count, the one for accounting, without prejudice. But this did not dispose of all the issues in the case because the bank's counterclaim was still pending.
Plaintiff then filed an amended reply to the counterclaim stating that the promissory note on which it was based was procured by fraud. He joined with his reply his own counterclaim against defendants in which he again set out his six counts for damages. His reply was dismissed, also on the ground of departure. His counterclaim was dismissed on the ground the six counts had been previously dismissed when filed as an amended petition. He declined to plead further, and judgment on the pleadings was entered against plaintiff and for the bank for $8,248.75. Defendant Sievers...
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