36 Mo. App. 224 | Mo. Ct. App. | 1889
Lead Opinion
delivered the opinion of the court.
This action was before the court on a former appeal. 28 Mo. App. 64. It was originally brought against James T. Sims as sole defendant. The original petition contained two counts. The first was for services rendered in towing barges for the defendant. The second was upon a judgment obtained by the plaintiff in the circuit court of the city of St. Louis, jointly against the defendant Sims and one Rogers. The plaintiff dismissed his action as to the first count and took judgment upon the second count, and the defendant appealed to this court. This court, holding that a second action might be maintained upon the judgment, nevertheless reversed the judgment, because the original, judgment
I. Thereafter, when the cause was called for trial, the defendant Sims presented a motion in writing to strike out the first count of the amended petition, for reasons which we shall not recite in detail, but which in substance were that such an amendment was not admissible after the cause had been remanded by this court to the circuit court. The court overruled this motion to strike out. The trial resulted in a verdict and judgment for the plaintiff and the defendant Sims again appeals to this court. The first error which he assigns is the overruling of this motion. It is clear that no error was committed in this ruling, for two reasons. (1) The motion to strike out should have been made before the defendant answered, and came too late when the case was called for trial. Spurlock v. Railroad, 98 Mo. 530, 537. (2) The motion was also bad in substance. There is no rule of procedure which cuts off an amendment of the pleadings, otherwise proper, after the cause has been remanded by an appellate court. It is the constant practice to allow such amendments, and an amendment restoring an abandoned count in the petition was recommended by this court in the case of Grant v. Reinhart, 33 Mo. App. 74.
II. One paragraph of the answer filed to the amended petition after the cause was remanded by this court consisted of a plea in abatement on the ground of privilege. This plea set up in substance that the
Nor is it material that the jury made no finding in respect of this issue, because they could have made but one finding, and that might have been directed by the
III. The next assignment of error is that the court should have given an instruction in the nature of a demurrer to the evidence at the close of the plaintiff’s case. This contention is grounded upon the fact that it came out in evidence that the services which were the subject of the first count in the petition were the same services for which the judgment, which was the subject of the second count in the petition, had been rendered. But it is to be said that the defendant Sims, in one of the paragraphs of his answer, pleaded that this judgment was void, for the reason that, when the action which resulted in it was commenced, he was a non-resident of the state of Missouri, and had never been served with process therein, and had never appeared therein by counsel or otherwise, and had no notice of the proceeding until long after the judgment had been rendered. He did not, however, set up in his answer, as res adjudicates, that the demand which was the subject of the first count in the petition was the same demand which was the subject of this judgment, though he did allege the fact. He did not do this for the obvious reason that he could not in his answer take the contradictory positions that this judgment, which was the foundation of the second count, was mid because it had been rendered against him without service of process and without any appearance on his part, and that it was at the same time
But if there had been any error in this ruling, it was cured by what subsequently took place at the trial. It appeared from the defendant’s evidence that he had never authorized the counsel who professed to appear for him in the action, which resulted in the judgment, so to appear. As process had not been served upon him in that action, that judgment was therefore void as to him, and the jury must have so found, if the question had been submitted to them. To avoid this, the plaintiff, at the close of the evidence, dismissed his action as to the second count and elected to stand on the first count, thereby not disputing so much of the answer as pleaded that the judgment sued on in the second count was void. The defendant is therefore in no position to complain, after having been successful in defeating a recovery in an action on this judgment because it was void, that the court did not at the same time treat it as valid, for the purpose of estopping the plaintiff from maintaining his action upon the cause of action which he had endeavored to ripen into the void j udgment. It was either valid or void, and it could not be at once valid and void for the purpose of enabling the defendant to defeat a recovery of the debt which was its foundation. He elected to take the position that it was void, and it was not admissible for him to change positions in the same action, and, to use an expression which has almost
IV. The next assignment of error is that the court should not have permitted the plaintiff to file a reply setting up affirmative matter after both sides had rested in chief. The affirmative matter in this reply consisted simply of an averment of facts showing that the defendant Sims had waived the claim of privilege set up in his answer, by appearing and taking the various steps with reference to the merits of the case which we have already recited. There was no error in this upon any conception. By section 3567, Revised Statutes, “The court may at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, * * * by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. ’ ’ There is nothing in section 3572, which prohibits the court from allowing an amendment to the reply after the evidence is all in, so as to make it conform to the evidence ; and the granting of this amendment was within the sound discretion of the court. But, as we have already seen, the issue was scarcely more than a sham issue, for the claim of privilege had been waived by several steps which appeared of record in the case, and consequently no ruling with reference to it could have been prejudicial.
V. The next assignment of error is that the following instruction is not good inlaw: “If the jury find and believe from the evidence that plaintiff and Martin Michael did the towing mentioned in the petition in this cause for the firm of Rogers and Sims and at their request, and that said Michael afterwards sold and assigned his interest in the same to the plaintiffs before this suit, and that, within five years next after said towing was done, said Sims departed from and has
The judgment will accordingly be affirmed.
Rehearing
delivered the opinion of the court on a motion for rehearing.
A rehearing is asked in this cause on two grounds: (1) That the court erred in ruling that the defense in abatement had been waived by the appellant. (2) That the definition, in the opinion already given, of a “resident of this state” as used in the statute of limitations, is erroneous and in conflict with controlling decisions of the supreme court.
I. The first ground of the motion is predicated upon the argument that the petition was demurrable
II. This brings us to the s econd ground on which the motion for a rehearing is predicated. No decision of the supreme court has been cited to us with which our decision on the interpretation of the words “resident of this state,” as used in the statute of limitations, is in conflict. The cases of Chariton County v. Moberly, 59 Mo. 242, and Greene v. Beckwith, 38 Mo. 387, holding that the
We have re-read the record for the purpose of reassuring ourselves upon the question whether we were mistaken in our former opinion as to there being evidence tending to show that Sims was a resident of this state, within the view which we take of the meaning of the word resident in the statute of limitations, at the time when the cause of action accrued. The evidence-dears our minds of all doubt on this question. It appears that Sims and his co-defendant, Rogers, were co-partners in the business of taking and executing-various contracts for work under the name of Rogers & Sims ; that in 1876 they became interested in a contract for the doing of work on Mill creek sewer in the city of St. Louis, jointly with another firm ; that they prosecuted this work from 1876 until the spring of 1878 that, from.the commencement of this work until August,. 1877, the defendant Rogers was the manager and financial agent of the partnership, and the defendant Sims had charge of getting out the stone and was regularly in St. Louis superintending the hauling of the stone from the landing on the river to the place where it was
Captain Bollman was probably mistaken about its being Morgan street, for the defendant Rogers, partner of Mr. Sims, and who must have familiarly known where his residence was, testified that before 1878 he had lived on Chestnut street in the city of St. Louis. This was the only item of evidence bearing upon the question of the residence of Mr. Sims which was received against objection. The objection to this was on the ground that it was “irrelevant.”
Waiving the question whether an objection to evidence on the ground that it is irrelevant, without bringing to the mind of the court why or how it is irrelevant, is a good objection, we think that if a technical error •was committed in overruling this objection it cannot be regarded as prejudicial, because we are still of opinion, as we held in the first place, that the averment that Mr. Sims was a resident of the state of Missouri prior to his leaving in 1878, is inferentially made in the petition. We are clear, upon the whole record, that a reversal of this case on this ground would produce no other result than an amendment of the pleadings and a little more
It cannot escape attention that this case has been defended from first to last upon extremely technical grounds; that technical defenses have been set up which were inconsistent with each other; that, after waiving the question of jurisdiction over his person, an objection has beén predicated upon the supposed error of the court in not trying the -question of jurisdiction before trying the merits ; that the defendant is sued upon an obligation shown to have been contracted by him in person for himself and his co-partner; that it is shown that the charges for the work were reasonable; that it is shown that he promised again and again to pay the debt; that it is shown that he promised to pay it out of a particular fund; that it is shown that when he collected that fund instead of keeping this promise, he immediately left the city; that it further appears that he had no better defense than that, as between him and his co-partner, the latter and not he ought to pay, which is no defense either in law or in morals. It would be a travesty of justice to send this case back for another trial.
The motion for rehearing will be overruled.