Grigsby v. Barton County

169 Mo. 221 | Mo. | 1902

BRACE, P. J.

— This is a suit in equity instituted by George W. Grigsby as plaintiff, against Barton county and A. O. Poole as defendants, to' correct an alleged mistake in the description of the premises in a. school-fund mortgage exe- ■ cuted by the said George W. Grigsby to the county of Barton to secure the payment of a bond for $625, with interest, given by the said Grigsby as principal with his co-plaintiffs, A. Van Meter, G. W. Harris, N. B. Elam and S. J. Minñice as-his sureties, for that amount of money borrowed of the school fund of said county. The premises having been afterwards conveyed by deed to defendant A. C. Poole subject to the-mortgage. .

From the decree of the circuit court correcting the mistake as prayed for, this appeal is taken; the only error assigned for reversal being the refusal of the court to sustain-the folio-wing motion:

“Now comes the defendant, A. O. Poole-, and moves the-court to strike out the paper filed herein called the second amended petition, filed September 28, 1898, for the reason; that the same joins four new parties plaintiff, who- were not parties to the original suit in this ease, and who are not, under /the facts alleged in the original petition, entitled to any relief; and the only plaintiff in the original petition had no cause of action against this defendant upon the facts stated in his petition, and costs have accrued under the original petition, prior to the filing of said second amended petition, and said second amended petition changes substantially the original cause of action and sets up an entirely new and original cause of action in favor of said new plaintiffs, viz.: Yan Meter, Harris, Elam1 and Minnice.”

The county answered the petition, consenting that the prayer of the petition be granted. The defendant, Poole, after the court overruled the motion, refused to plead further, and is really the only appellant. The alleged mistake was the omission in the description of the premises conveyed in the mortgage of a part of a lot which was included in the description of the premises conveyed to Poole. The cause of action stated in the amended petition is precisely the same as in the original petition, the only difference between them being that in the amended petition some evidential facts were stated that were not stated in the original petition, but which did not change the cause of action, and the making of the said Yan Meter, Harris, Elam and Minnice parties plaintiff-— stating their relation to the subject-matter. Of course, the original petition did not state a cause of action in their favor against the defendants, but making them parties to the cause of action therein stated, did not change the cause- of action. The same evidence would have been required to support, and the same judgment to he rendered in the one as in the other, and this is the test of identity. [Liese v. Meyer, 143 Mo. 547; Holt Co. v. Cannon, 114 Mo. 514; Scovill v. Glasner, 79 Mo. 449.]

The plaintiff, Grigsby, was a party to the original contract' in which the alleged mistake was made, and although he had conveyed the land to Poole, subject to the mortgage, he remained personally liable on the bond, and the extent of that liability was increased as was that of his sureties by reason of the mistake. “It is the general rule that a mistake in an instrument can be corrected in equity only when the litigation is between the original parties, or those in privity with them” and “all parties who would be affected by the correction of the mistake must be made parties to the suit.” [14 Ency. of Plead. and Prac., 46; Dodson v. Lomax, 113 Mo. 555; Seiberling v. Tipton, 113 Mo. 373; Martin v. Nixon, 92 Mo. 26.] Hence, Grigsby had a right of action to correct the mistake.

' The correction of the mistake would also in like manner affect his sureties on the bond the mbrtgage, was given to secure; and they had an interest in'the cause of action; whether they were necessary parties or not they were not improper parties, and the question as to whether they were necessary parties is not raised by this motion. The original parties to the contract, their privies, and all who would be affected by this correction, had been properly made parties and were before the court as they should be in a ease of this kind, when this motion was filed, and the court committed no error in overruling it. All the costs of the'proceedings, except those unnecessarily made by the appellant, were taxed against the plaintiffs, so that he has no ground of complaint on that score.

The judgment of the circuit court is affirmed.

All concur.