Grymes v. Liebke Hardwood Mill & Lumber Co.

111 Mo. App. 358 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — 1. The record does not show that the amended petition was filed after the cause had been submitted to the court, as alleged in the first error assigned, but on the contrary it shows that it was filed two days prior thereto; but this is wholly immaterial here. Plaintiff had a right to an amendment as a matter of course, and if defendant had objected thereto or felt aggrieved thereby, it could have asked a continuance. R. S. 1899, sec. 688. The amendment could have been permitted at any time before final judgment on such terms as may have been proper. R. S. 1899, sec. 657. It is a fact that while our statutes are liberal in allowing amendments, a party is not permitted to substitute an entirely new and different cause of action by the amendment. Heman v. Glann, 129 Mo. 325, 31 S. W. 589. It is well settled in this State, however, that a party must, in such case, in order to avail himself of his rights therein, move to strike out, and in event' such motion is ruled against him, stand on the motion, and appeal, in order to have the action of the trial court revived thereon. Even though an amendment changes a cause of action and is a clear departure, if the party pleads over and goes to trial thereon, he waives his right to object. Scovill v. Glasner, 79 Mo. 449; Fuggle v. Hobbs, 42 Mo. 537; State ex rel. v. Bank, 160 Mo. 640, 61 S. W. 676; Estes v. Shoe Go., 155 Mo. 577, 56 S. W. 316; Hill v. Morris, 21 Mo. App. 256; Hurley v. Railway, 57 Mo. App. 675; Mankameyer v. Egelhoff, 93 Mo. App. 183; Thompson v. Cummings, 39 Mo. App. 537; Bernard v. Mott, 89 Mo. App. 403; Burnham & Co. v. Tillery & Co., 85 Mo. App. 453; Shuler v. Railway, 87 Mo. App. 618. The only cases to be found where reversals have been had on account of such amendments are where the parties have stood on their motion and refused to plead further. Scoville v. Glasner, and cases cited above.

In Hill v. Morris, 21 Mo. App. 256, the party objected and excepted to an amendment, took a bill of exceptions thereon, then pleaded over and went to' trial. This court said: “This ruling is not before us for review, because, by pleading to the third amended petition, and going to trial, the defendants waived their objection to it.”

In the case at bar defendant neither moved to strike out the amendment, nor is there any objection in the record by it thereto, but joined issues thereon, went to trial and was defeated. It would not have changed the case any, however, had objections and exceptions been made at the time in view of its answering over and participating in the trial thereon. There is no merit in this assignment, therefore, it is overruled.

When plaintiff was on the stand his counsel asked him what defendant’s agent had said to him, if anything, after the written contract was made, about getting out an amount of timber in excess of the amount called for in said written contract, to which defendant objected as follows: “Objected to by counsel for defendant because not sued for and not set ont in the first petition.” The objection was overruled and exception noted. On this objection the second assignment of error is based. It was immaterial whether the contract which this evidence was elicited to prove was set up in the original petition or not; it was set up in the petition then before the court and on which the case was being tried. The evidence which this question sought to bring out was probative of the contract then on trial. The time to have made this point was before joining issues on the amended petition by a motion to strike out the amendment, for the reason the contract pleaded therein was not the same contract pleaded in the original petition. Had plaintiff made the point then and stood thereon, refusing to plead further, the question, as to whether or not the amendment changed the causé of action, and was for that reason a departure, would then have been open for review here but, as it is, no such question is before this court and therefore not in decision. The second assignment must be ruled against plaintiff.

The third assignment is that the court should have granted a new trial because of error in permitting the introduction of evidence to prove the contract set up in the amended petition. What has been said on the first and second propositions submitted is sufficient on this.

The fourth assignment is that the finding should have been for defendant. With this we have nothing to do, if there is substantial evidence to sustain it. There is not only substantial but an abundance of evidence to justify the court in finding as it did. The appellant cites many authorities; none of them are in point here, however. The appeal in this case is frivolous.

The judgment should be affirmed and it is so ordered.

All concur.