Merriman v. City of Springfield

142 Mo. App. 506 | Mo. Ct. App. | 1910

COX, J.

Action for damages to certain lots in the city of Springfield, alleged to have been caused by defendant while improving its streets, causing a large body of surface water to ‘ accumulate and to be discharged upon the lots described in the petition.

The petition was filed August 15, 1905, in which the plaintiff, M'. TI. Merriman, appeared as the only party plaintiff, and ownership of the lots was alleged to be in him. The damage was alleged to have occurred in October, 1900. At the May term, 1906, Caroline E. Merriman was, by order of record, made a party plaintiff. At the January term, 1907, the petition was amended by interlineation, and in which, both M. H. Merriman and Caroline E. Merriman appeared as plaintiffs, and the allegation made that Caroline E. Merriman was the owner of the lots, and that M. H. Merriman was her husband. The defendant filed a demurrer to this amended petition, alleging as grounds therefor that the amended petition changed the cause of action and was a substitution of a new cause of action by amendment; that there, was a defect of parties and an improper joining of plaintiffs. The court sustained this demurrer and plaintiff, refusing to plead further, judgment went against him, and he has appealed.

The statute, section 657, Revised Statutes 1899, which is looked to as authority to require the court to allow the amendment to stand, has always received a most liberal construction by the courts of this State, and while they are no.t all in accord upon the question of permitting an amendment of the petition by adding the name of a new party, where the new party added is the real party in interest, yet the later decisions on this question are to the effect that it may be done where the ends of justice will be met thereby, and the. defendant not injured. [Hackett v. Van Frank, 119 Mo. App. 648, 96 S. W. 247; Glover & Son Commission Co. v. Abilene Milling Co., 136 Mo. App. 365, 116 S. W. 1112.]

In the Hackett case some importance is attached to the fact that if that action were abated the claim would be barred by limitation. The same thing is true in this case, and s<t> the ends of justice require that the amendment be permitted to stand unless the mandates of the law forbid, and we do not think they do'.

There is another reason why this demurrer should have been overruled and the amended petition allowed to stand. Caroline E. Merriman was made a party plaintiff by order of court before the petition was amended, and this Avas done without objection on the part of defendant. Had the defendant objected, she could only have been made a party plaintiff upon a showing that she Avas interested in the litigation, and was a necessary, or proper, party plaintiff, and if defendant did not desire her interests, whatever they might be, litigated in this action, it should have objected then and required her to make a showing as to why she should be made a party, and by not objecting at that time, it waived its right to raise the question afterward by demurrer to the petition as amended. [Butler v. Boynton, 117 Mo. App. 462, 1. c. 468, 94 S. W. 723.]

Again this amendment was made by interlineation, and when leave to amend was asked for, the attorney for plaintiff stated to the court the changes he desired to make, and leave was granted accordingly, and this was not objected to by defendant; so it appears that this amendment was made with its tacit, if not express, consent, and, for that reason, it should not have been permitted to afterward object by demurrer to the petition.

Plaintiffs, in their motion for new trial, allege that since judgment had been rendered against them they had ascertained the fact to be that the title to the lots is, as a matter of fact, in M. H. Merriman, as alleged in the original petition. This allegation, however, is not supported by affidavit, and, as the motion for new trial does not prove -itself, that question is not before us. If, however, this is true, we see no reason why before a re-trial of this case, the amendment may not be made, and it might not be out of the way to suggest that counsel for plaintiffs learn where the title to these lots is before he makes any further -amendment, and when he does amend it, do it in a way that no further controversy can arise upon that question.

The judgment will be reversed and the cause remanded.

All concur.