Sims v. Field

24 Mo. App. 557 | Mo. Ct. App. | 1887

Lead Opinion

Hall, J.

The original petition was based upon the wrongful removal by defendant of a division fence, made such by the statute, without the statutory notice of the defendant’s intention to remove the same. In order to prove the cause of action alleged in the original petition it was necessary to show a division fence under the statute, the removal of said fence by defendant, and a failure by him to give the statutory notice of his intention to remove said fence. The original petition was in fact founded upon a statutory wrong committed by the defendant. The wrong was a wrong under the statutes and not otherwise. The wrong was not a wrong by reason of any agreement by defendant, or those from whom he purchased his land.

The amended petition was based upon the wrongful removal by defendant of a division fence, not under the statutes, but existing by the permission and consent of the defendant, without reasonable notice of his intention to remove the same. To prove the cause of action alleged in the amended petition it was necessary to show a division fence, existing under license from the defendant,' and the removal by defendant' of said fence without reasonable notice of his intention to remove said fence. The wrong was not a wrong under the statutes. The wrong was a wrong because it was in violation of the license granted to the plaintiff by the defendant. And the amended petition was in fact founded upon a violation by the defendant of such license.

The original petition was oased upon the statutes concerning division fences. The amended petition was based upon a license from the defendant to the plaintiff to maintain the fence as a division fence. The proof required by one petition was entirely different from the proof required by the other petition. And this difference was as to the character of the proof and not as to "the quantity of the proof only. The entire proof required by the original petition would not have been sufficient under the amended petition. The amended petition cannot be held to be an amendment of the original petition, but must be held to be a substitute for said petition. Fields v. Maloney, 78 Mo. 174; Scovill v. Glasner, 79 Mo. 452. The court on motion should have stricken out the amended petition for that reason. The defendant filed no such motion and, of course, by such failure waived the right to have the amended petition stricken out. Scovill v. Glasner, supra. But the question is, was the running of the statute of limitations arrested by the filing of the original petition, as concerns the cause of action alleged in the amended petition?

With reference to this question the rule has been laid down as follows :

“ The rule is this: where the amendment sets up no new matter or claim, but is a mere variation of the allegations affecting a demand already in issue, then the amendment relates to the commencement of the suit, and the running of the statute is arrested at that point; but where the amendment introduces a new claim not before asserted, then it is not treated as relating to the commencement of the suit, but as equivalent to a fresh suit upon a new cause of action — the running of the statute continuing down to the time the amendment' is filed.” Buell et al. v. Transfer Co., 45 Mo. 563.

Holding as we do that the amended petition was not properly an amendment, but was a substitute, substituting a new cause of .action for the cause of action alleged in the original petition, we must treat the filing of the amended petition as the institution of a new action. And in accordance with the rule above stated we hold that the running of the statute of limitations was-not arrested by the filing of the original petition, but. continued down to the filing of the amended petition.

The cause of action stated in the amended petition,, upon the face thereof, was barred by the statute of limitation, more than five years having elapsed from the' time it accrued before the amended petition was filed. The court should have given the instruction asked by defendant, and should have refused the instruction given by it for the plaintiff.

The judgment of the circuit court is, therefore, reversed.

All concur.

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Rehearing

On Motion for Re-hearing-.

Ellison, J.

A motion for re-hearing was duly presented in this case in which two points are made against the opinion heretofore promulgated.

It is earnestly urged that the cause of action was-not changed by the amendment made after the reversal of the cause by the Supreme Court, and in consequence' the statute of limitations would not bar the claim. The reasoning of counsel is very persuasive of the correctness of the position taken. But the question is not an. open one in this state. .Under the rule, as frequently declared by the Supreme Court, the amendment in this-case was an introduction of a new cause of action.

It is also contended that the opinion in this causéis in conflict with that of Silvers v. Railroad (21 Mo. App. 5), wherein we declare, on the authority of Scovill v. Glasner (79 Mo. 449), that by answering defendant waived any alleged error in the court’s overruling a motion to strike out an amended petition as being a change of the cause of action. That ruling was correct, but as the defence of the statute of limitations was pleaded in the answer in that case and an instruction on limitations was refused, the question as to the change of the cause of action was, by this means, again raised and we should, in order to have been better understood, have proceeded to say in that opinion that the court properly refused the instruction, as, in that case, there was no change of the cause of action. The original was an imperfect and inartistic statement, but both it and the amendment were evidently based on Revised Statutes, section 809. The motion is overruled.