| Mo. Ct. App. | Feb 1, 1904
Plaintiff sued defendants in two counts on two promissory notes, one for $149.30 and the other for $587.46. Defendants had made an assignment prior to the institution of the suit and plaintiff had presented and had both notes allowed by the assignee, thus merging them into judgments.' Defendants answered plaintiff’s petition admitting the execution of the notes, but setting the allowance and merger as in bar of an action on the notes themselves. They further answered by setting-up that they had delivered certain valuable collateral to plaintiff with the notes. That enough of them had been collected to pay the notes. Defendants then pleaded a counterclaim and demanded an. affirmative judgment against plaintiff for $449.30. Plaintiff then, filed an amended petition in which it declared on the judgments. On motion of defendants this
The action taken by the trial court on the case made as just set out, involves a construction of section 4499, Revised Statutes 1899, which reads as follows: “Whenever a set-off or counterclaim shall be filed in an action, as provided in this chapter, it shall be deemed in law and treated as an independent action begun by the defendant against the plaintiff, except in the cases enumerated in section 4488 of this chapter; and, the dismissal or any other discontinuance of the plaintiff’s action, in which such set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue such set-off
In our opinion the first view entertained by the trial court was correct and that it erred in granting the motion for new trial on the ground that plaintiff could not •set up in its replication to defendants’ answer and counterclaim, the same .matter that was the foundation of its action as set out, whether in the original petition which it dismissed, or in the amended petition which was stricken out. The effect of the statute is that where -a plaintiff dismisses his action, anything on defendant’s part which he has claimed in his answer and which was proper matter of set-off, or of counterclaim to plaintiff’s cause of action, should be considered as though it was the basis of an action by such defendant, as though he was a plaintiff, against such plaintiff as though he was a defendant. When a defendant, after the petition has been dismissed by the plaintiff, shall elect to continue to prosecute his set-off, or his counterclaim notwithstanding such dismissal, he takes upon himself the prosecution of an action in which he becomes to all intents :and purposes a plaintiff, and the plaintiff becomes a defendant. The statute aforesaid reads that, such defendant shall be subject to all the rules applicable to plaintiffs in civil actions and other procedure and that his claim shall be proceeded with in all .respects as if he had originally begun the action against the plaintiff.
Defendants, to sustain the reason given for granting the new trial, urge several reasons founded on the ordinary rules of pleading, among others, the rule in this State that there.can be no recovery on a cause of action which first appears stated in the reply and which are not within the general scope of the petition. Crawford v. Spencer, 36 Mo. App. 78" court="Mo. Ct. App." date_filed="1889-04-29" href="https://app.midpage.ai/document/crawford-v-spencer-8259738?utm_source=webapp" opinion_id="8259738">36 Mo. App. 78; Stepp v. Livingston, 72 Mo. App. 175" court="Mo. Ct. App." date_filed="1897-11-22" href="https://app.midpage.ai/document/stepp-v-livingston-6618851?utm_source=webapp" opinion_id="6618851">72 Mo. App. 175, 179; Hill v. Mining Co., 119 Mo. l. c. 30. By this contention it is seen that defendants regard the rights of plaintiff as they would be unaffected by the statute. But by that statute plaintiff and defendants change places, and plaintiff becomes for all practical purposes the defendant, and what counsel call the replication is really an answer. That statute was enacted to meet the special'phase of such a case as it refers to; and, in so far as is necessary to effectuate its purpose in such case, it must be held to supersede the general rule governing the parties in their pleading, whether such rule be founded on the general, statute or on decisions of the courts.
There is a statute of the State of Iowa, certainly no broader than ours, which reads: “In any case where a counterclaim has been filed, the defendant shall have the right of proceeding to trial thereon, although the plaintiff may have dismissed his action or failed to appear.” A case arose in which the plaintiff brought his bill to enjoin the defendant from foreclosing a mortgage to secure plaintiff’s notes on the ground that they had been paid and asking that they be cancelled. The
Defendants seek to avoid the force of that decision by suggesting that by the general statute of Iowa ‘ ‘ any number of defenses negative or affirmative are plead-able to a counterclaim, and such affirmative matter of defense in reply shall be sufficient in itself and must intelligibly refer to the part of the answer to which it is intended to apply.” But the general statute permits no more than the section of our statute which we are now construing in so far as it affects the point under consideration. For, as we have already pointed out, our statute makes a defendant with his counterclaim, a plaintiff seeking to obtain judgment upon it; and it makes of the plaintiff a defendant with all the rights of any other defendant who had been sued on a demand.
But defendants urge another point which we conclude entitles them to an affirmance of the judgment. The motion for new trial, as has been stated, included more than the one cause assigned for granting it. Among other reasons was one that “ the court erred in sustaining and confirming the report of the referee.” There was a bill of exceptions containing the report and the evidence had at the trial and the declarations of law. The plaintiff has not brought up the bill of exceptions nor has it furnished us with an abstract of it. We have no means of ascertaining whether any other reason assigned in the motion for new trial was well founded.
The law is, that we may examine any other ground of the motion for new trial than that assigned by the trial court in order to sustain the action of such court. Lovell v. Davis, 52 Mo. App. 342" court="Mo. Ct. App." date_filed="1893-01-16" href="https://app.midpage.ai/document/lovell-v-davis-6617260?utm_source=webapp" opinion_id="6617260">52 Mo. App. 342, 347; Hewitt v. Steele, 118 Mo. 463" court="Mo." date_filed="1893-12-07" href="https://app.midpage.ai/document/hewitt-v-steele-8011098?utm_source=webapp" opinion_id="8011098">118 Mo. 463; Gray v. Railway, 54 Mo. App. 671; Saville
The plaintiff not having brought before us the entire record — having omitted that part which, defendants contend, would show the order granting the new trial was proper, we are hot authorized to say that it was improper and hence we order its affirmance.