F. G. Oxley Stave Co. v. Whitson

34 Mo. App. 624 | Mo. Ct. App. | 1889

Thompson, J.,

delivered the opinion of the court.

This was intended to be an action of replevin, but failed of being an action at all, for the reasons hereinafter stated. The plaintiff began its action by filing the following affidavit: “The plaintiff states that it is the owner and lawfully entitled to the possession of the following specified property, viz : A lot of white oak staves and heading on H. H. Bedford’s land, six miles south of Essex in Stoddard county, Missouri, — about forty thousand staves, — of the value of two hundred and sixty dollars; that the same has not been seized under any process, execution, or attachment against the property of the plaintiff, but is wrongfully detained by the defendant; and that plaintiff will be in danger of losing the said property unless the same be taken out of the possession of the defendant or otherwise secured.” The affidavit was signed by T. G. Gifford, and was subscribed and sworn to by him before the clerk of the circuit court, “for and on behalf of the F. G. Oxley Stave Company.”

It is perceived that this is not a petition, but that it is an affidavit in replevin in the terms prescribed by the statute (R. S., sec. 3844), which, by the pro visions.."of such statute, the “ plaintiff may file1 at the time of the filing of his petition, or at any other time afterwards, before the rendition of the judgment in the cause.” ' It is also perceived that it is in the precise language of form number 44, given in the appendix of volume 1, of the Revised Statutes, at page 707, as an “ affidavit of claim, and for delivery of personal property.” It is also perceived that it lacks an essential element of a petition, as prescribed by section 3511, Revised Statutes, in that it does not contain “ a demand of the relief to which the plaintiff may. suppose himself entitled,” and lacks an essential element of every pleading in not being signed either by the party or his attorney. (Revised Statutes, sec. 3536.) It is quite clear that it was not intended as a petition at all, but only as an affidavit which the claimant in such a case files in order to secure an order of the court, or of the clerk in vacation, for the delivery of the property to him ; and such a delivery order was in fact made to the claimant upon the strength of this affidavit. A summons was issued in the usual form — no doubt drawn upon the customary printed blank — reciting that a certified copy of the petition “ is hereunto annexed.” But the sheriff’s return does not certify an execution of the summons by a delivering a copy of the petition to the defendant or to any one else at his residence. No petition was ever filed in the case.

This affidavit was made on the sixteenth of February, 1888. On the fourth day of the succeeding term of the circuit court of Stoddard county, namely, on the eighth day of March, 1888, the defendant filed his motion to dismiss the cause and for judgment, on the ground that the plaintiff had failed to file a petition as required by law. The court sustained this motion and the claimant excepted. A bill of exceptions recites that “ the plaintiff, before said motion was sustained, offered to file his petition in due form in said cause, which said offer was refused by the court, to which action of the court the plaintiff, by its counsel, then and there excepted. The plaintiff then moved the court for leave to file an amended petition herein, which motion was overruled by the court, to which action of the court the-plaintiff, by its counsel, then and there excepted. The court, upon motion of defendant, then dismissed plaintiff’s suit, to which action of the court the plaintiff, by its counsel, then and there excepted.” The plaintiff then filed its motion to set aside the order of dismissal and for a new hearing, which being overruled, it excepted, and brings the question before this court by appeal.

There was no error in the rulings of the circuit court. There never was any petition in court to which the statute of amendments could have any application. The affidavit was not a petition, for the reason already stated, that it contained no prayer for relief, which is an essential element of a petition under our statute. Nor was it apparently intended as a petition, but it was evidently intended merely as the statutory means to be pursued in getting possession of the property. Such an affidavit is not necessary at all in an action of replevin, but the suit may be prosecuted without it, though without it the plaintiff can not get possession of the property until after judgment has been rendered in his favor. Eads v. Stephens, 63 Mo. 90. The' affidavit is, therefore, a mere auxiliary paper designed to effect the collateral and temporary purpose of changing the possession of the property during the pendency of the action. If there is a good petition in an action of replevin, there is a ease in court without such an affidavit; and if there is no petition in such an action, there is clearly no case in court even with such an affidavit. In every case where not otherwise provided by statute, a suit is instituted in this state “by filing in the office of the clerk of the proper court a petition, setting forth the plaintiff’s cause or causes of action, and the remedy sought.” R. S., sec. 3485. Until such a petition is filed, there is no cause in court, and an intending plaintiff can not, by filing- something else, and procuring the clerk to docket it as a cause in court, make it such. The statute providing for the amendment of petitions and answers of course and without costs (R. S., sec. 3571) can therefore have no application to such a case, since there is no petition to amend. The more general statute of amendments (R. S., sec. 3567) prescribing for the allowance of amendments of “ any record, pleading, process, entry, return or other proceedings, in furtherance of justice,” etc.., is exceedingly liberal in its terms, and is interpreted with equal liberality by the courts. But it assumes throughout that there is something to amend. It does not authorize the bringing of a suit in a manner entirely different from that prescribed by the governing statute and making it good by a subsequent amendment. The plaintiff had never brought an action of replevin, because he had never filed a petition in replevin, and he therefore could not create an action by amendment. The mere circumstance that the defendant may have been in court by his counsel did not authorize the court to allow the plaintiff to bring an action of replevin against the defendant by the mere filing of a petition, without the service of process returnable tó the next succeeding term, as prescribed by the statute (R.-S., sec. 3486), thereby requiring him to answer and defend without the benefit of the statutory time for preparation.

The judgment will be affirmed.

All the judges concur,