Red Diamond Clothing Co. v. Steidemann

| Mo. Ct. App. | Oct 30, 1906

BLAND, P. J.

(after stating the facts).

1. The suit was begun September 17,1904. It appears from the allegations of the first and second petitions, that plaintiff’s lease expired December 31, 1904. It also appears from the second count in the first amended petition that defendants prevented plaintiff from removing its machinery from the leased premises on the day the lease expired, December 31, 1904. The date of the conversion is studiously omitted in the second amended petition, for a purpose to be hereafter adverted to. The first count in all the petitions is to remove a cloud upon the title of personal property in the possession of and claimed to be the property of the plaintiff.

In State ex rel. v. Wood, 155 Mo. l. c. 446, 56 S.W. 474" court="Mo." date_filed="1900-03-27" href="https://app.midpage.ai/document/state-ex-rel-kenamore-v-wood-8013523?utm_source=webapp" opinion_id="8013523">56 S. W. 474, the court said: “It would seem to be elementary that in legal parlance cloud upon title arises with reference to real estate only. [6 Am. & Eng. Ency. Law (2 Ed.), 150 and cased cited.] This is the settled law of this State. [Lockwood v. St. Louis, 24 Mo. 20" court="Mo." date_filed="1856-10-15" href="https://app.midpage.ai/document/lockwood-v-city-of-st-louis-7999910?utm_source=webapp" opinion_id="7999910">24 Mo. 20; Leslie v. St. Louis, 47 Mo. 474" court="Mo." date_filed="1871-03-15" href="https://app.midpage.ai/document/leslie-v-city-of-st-louis-8003159?utm_source=webapp" opinion_id="8003159">47 Mo. 474; Warrensburg v. Miller, 77 Mo. 56" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/town-of-warrensburg-ex-rel-colbern-v-miller-8007262?utm_source=webapp" opinion_id="8007262">77 Mo. 56; Sayre v. Thompkins, 23 Mo. 443" court="Mo." date_filed="1856-10-15" href="https://app.midpage.ai/document/sayre-v-tompkins-7999890?utm_source=webapp" opinion_id="7999890">23 Mo. 443; Bank v. Kansas City, 73 Mo. 555" court="Mo." date_filed="1881-04-15" href="https://app.midpage.ai/document/mechanics-bank-v-city-of-kansas-8006786?utm_source=webapp" opinion_id="8006786">73 Mo. 555.]” There are exceptions to- this elementary rule of equity practice; for instance, to remove a cloud upon attached property in the hands of a sheriff, when the cloud is created by a recorded mortgage. [Voss v. Murray, 50 Ohio St. 19.] Assignees of property, which they desire to sell, may remove a cloud upon it, created by a recorded mortgage, which they claim to be invalid. [Sherman v. Fitch, 98 Mass. 59" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/sherman-v-fitch-6415151?utm_source=webapp" opinion_id="6415151">98 Mass. 59.] In the latter case, the court said: “The mortgage is upon record, and it is evident that they (the assignees) cannot sell the property with any prospect of obtaining its fair value, because the purcháser would know that he exposed himself to an action, if the defendant’s claim is well founded.” The same principle of equity is announced in Magnuson v. Clithero, 101 Wis. 551" court="Wis." date_filed="1899-01-10" href="https://app.midpage.ai/document/magnuson-v-clithero-8186133?utm_source=webapp" opinion_id="8186133">101 Wis. 551. Pomeroy said the action to quiet title “'may be invoked to determine conflicting rights over personal property. ... It will be seen that each case must stand mainly upon its own circumstances.” [Pomeroy on Remedies and Remedial Rights, sec. 369.] No case can be found where a court of equity has closed a man’s mouth and tied his tongue to make a mere verbal claim to another’s property, and that is all defendants are alleged to have done in the first count in the petition, and we think the demurrer was properly sustained.

2. The grounds assigned in the motion to strike out the se,cond count of the second amended petition are as follows;

“1st. That said count is a departure from the cause of action pleaded in the original petition herein; and

“2nd. That the pretended cause of action set forth in said second count accrued after the commencement of this suit on September 17, 1904, in that the alleged conversion by defendants of the articles in said count described took place long thereafter, when the lease under which the plaintiff claims had expired, December 31, 1904.”

It is permissible, under our code of practice, to bring forward, by an amended or supplemental petition, matters that have occurred since the commencement of the suit, where they simply enlarge the relief prayed for (Ward v. Davidson, 89 Mo. 445" court="Mo." date_filed="1886-04-15" href="https://app.midpage.ai/document/ward-v-davidson-8008745?utm_source=webapp" opinion_id="8008745">89 Mo. 445) and so, a petition may be amended to correspond to changes which have occurred since the commencement of the suit. [Reyburn v. Mitchell, 106 Mo. 365" court="Mo." date_filed="1891-04-15" href="https://app.midpage.ai/document/reyburn-v-mitchell-8010216?utm_source=webapp" opinion_id="8010216">106 Mo. 365, 16 S. W. 592; Cohn v. Souders, 175 Mo. 455" court="Mo." date_filed="1903-06-09" href="https://app.midpage.ai/document/cohn-v-souders-8014706?utm_source=webapp" opinion_id="8014706">175 Mo. 455, 75 S. W. 413.] But a new and different cause of action cannot be substituted for tbe original by amendment, or be brought in by a new and separate count. [Heman v. Glann, 129 Mo. 325" court="Mo." date_filed="1895-06-18" href="https://app.midpage.ai/document/heman-v-glann-8011825?utm_source=webapp" opinion_id="8011825">129 Mo. 325, 31 S. W. 589; Purdy y. Pfaff, 104 Mo. App. 331" court="Mo. Ct. App." date_filed="1904-02-02" href="https://app.midpage.ai/document/purdy-v-pfaff-8263568?utm_source=webapp" opinion_id="8263568">104 Mo. App. 331, 78 S. W. 824. A petition may be strengthened or reinforced by new matter, but the new matters should not substitute a new cause of action. It also appears by the record plaintiff made, that its cause of action stated in the second count accrued after the filing of the original petition, and for this reason cannot form the basis of the suit introduced by the second count. [Heard v. Ritchey, 112 Mo. 516, 20 S. W. 799; Payne v. School District, 87 Mo. 415.]

The motion to strike out the second count was properly sustained and the judgment is affirmed.

All concur.