Carter v. Burns , 332 Mo. 1128 ( 1933 )

The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All of the judges concur, except Hays, J., not voting, because not a member of the court when cause was submitted.

ON MOTION FOR REHEARING Respondent, in his motion for rehearing, contends that the opinion herein overlooked or misconstrued the evidence favorable to him, tending to show an agreement between the Turney brothers (as a part of the consideration for their transaction) that Dillon Turney assumed and agreed to pay the mortgages on the land. Because of the manner in which the cases were tried below and submitted here it was necessary to set out, in the opinion for the purpose of deciding both cases, all the facts shown by the evidence favorable to both sides introduced in the equity case, which was tried first, and which also became a part of the evidence in the law case. The opinion recognizes that, in the law case, we are bound by the facts specifically or necessarily found by the trial court which are supported by substantial evidence. However, in view of the motion for rehearing, we have again carefully reviewed the entire record.

In McFarland v. Melson, 323 Mo. 977, 20 S.W.2d l.c. 68, this court, after reviewing evidence which it was claimed was sufficient to make a submissible case for the enforcement by the mortgagee of an oral agreement whereby a grantee of the mortgaged land was alleged to have assumed and agreed to pay the mortgage as a part of the purchase price to his grantor, said: "It is our conclusion from the whole record that, measured by the standards which the law imposes in cases of this character . . . that there was no substantial evidence to support a judgment for appellant." It is our conclusion, in this case, that the evidence of an agreement between the grantor and grantee (Turney brothers) that Dillon Turney would assume and agree to pay all the mortgages on the land as a part of a purchase price for the farm is even weaker than the evidence of such an agreement in the McFarland case. There was evidence tending to show that an agreement was made by Dillon Turney with respondent, in consideration of forbearance from foreclosure, to pay his mortgages. Respondent must stand or fall on that agreement.

[17] Respondent also contends that we have overlooked the point presented in his brief that after the evidence was heard defendant filed an amended answer; that this constituted an abandonment of the defenses in the original answer; that this amended answer contained neither a denial of an assumption agreement, before the conveyance of the land to defendant or a later agreement to pay the note, nor a plea of the Statute of Limitations of either Missouri or Iowa, except as to the first count of plaintiff's petition on which the court found for defendant; that the effect of this amended answer was to admit both the previously denied assumption agreement between the Turney brothers and the agreement with plaintiff to pay; and that it set up neither a denial nor limitations as a defense to the notes plaintiff owned. Respondent says, therefore, the grounds upon which this case was reversed had been abandoned as a defense. If defendant Dillon Turney abandoned his original answer and did not plead these defenses in his amended answer that would be true. [New First Natl. Bank v. C.L. Rhoades Produce Co.,332 Mo. 163, 58 S.W.2d 742, l.c. 744.] Did he do that?

It must be admitted that so far as our practice is concerned the so-called amended answer is an anomaly. It commences as follows:

"Comes now the defendant, Dillon Turney, after the close of the evidence and before the submission of the cause to the court,and does move the court in furtherance of justice to permitthis defendant to amend his answer and thereby conform this pleading to the facts proved as follows."

It then states as to the note sued on in respondent's first count (the McClain note upon which the court found against respondent) that defendant denies that a parol assumption agreement was made between the Turney brothers; that if any was made it was made on February 28, 1921 (date of deed), and would be barred under Section 11007, subsection 5, chapter 487, Code of Iowa, 1927, and Section 317, Revised Statutes 1919; that defendant denies that a parol agreement was made between him (the grantee) and plaintiff (the mortgagee) to pay plaintiff if he would withhold foreclosure; that if any was made it was made not later than March 5, 1921, and would be barred by the same limitation provisions.

As to the notes sued on in the other counts it makes only general statements of which the following is typical:

"Defendant says as to the oral contract to assume the indebtedness evidenced by the note described in count four of plaintiff's petition and amended petition, the cause of action accrued thereon as to plaintiff on February 28, 1921, and plaintiff's right now to recover thereon is barred by the particular sections of the statutes of limitations referred to in division one of this amended answer and for the reasons therein set forth.

"And as to the oral agreement upon the part of defendant to pay the note described in count four of petition and amended petition, the cause of action accrued thereon as to plaintiff on March 6, 1922, and plaintiff's right now to recover thereon is barred by the particular sections of the statutes of limitations referred to in division one hereof, and for the reasons therein set forth."

Under the view we take it is not necessary to rule as to the sufficiency of this pleading. At the close of defendant's evidence, defendant, before filing this pleading, filed a motion to strike respondent's petition from the files on the ground that the evidence affirmatively and conclusively showed that neither an assumption agreement between the Turney brothers, nor an agreement to pay respondent or any other mortgage note holder, was made. (This was also a motion not according to our practice.) After this motion was overruled this so-called amended answer was filed. This pleading and its filing is shown in the bill of exceptions. There is no order shown either there or in the record proper granting the leave asked to amend. Plaintiff orally objected to its filing and this objection was overruled. Thereafter, plaintiff filed a demurrer to it which was overruled and then filed a reply, containing a general denial and pleading another Iowa statute and Iowa decisions. Looking for an explanation of these maneuvers, since there were Iowa lawyers representing defendant (and plaintiff also), we find that under the Iowa practice, it is provided:

"All matters of supplement or amendment, whether of addition or subtraction, shall not be made by erasure or interlineation of the original, or by addition thereto, but upon a separate paper,which shall be filed and constitute, with the original, but onepleading. But if it be stated in such paper that it is a substitute for the former pleading intended to be amended, it shall be so taken, but the pleading superseded by the substitute shall not be withdrawn from the files." [Sec. 11184, p. 1409, chap. 491, Code of Iowa, 1927; same section, p. 1432; chap. 491, Code of Iowa, 1931.] Our practice is just the opposite. We do not allow one pleading to piece out another. Section 828, Revised Statutes 1929, requires:

"In every petition, answer or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense."

However, regardless of what the Iowa law is, it is apparent that, while defendant was undertaking to add something to his answer by amendment in a way not authorized by our practice, he did not intend to abandon his denial that an assumption agreement was made with his brother or that an agreement was made with plaintiff, McClain and Allen to pay their notes. These issues, as to whether such agreements were made, were live ones throughout the trial. Respondent continued to treat them as still being issues, after defendant made this attempt to amend, by requesting the court to give declarations of law concerning them. This is also true concerning the defense of the Statute of Limitations. We hold that the attempted amendment of the answer, in this manner, was ineffective because it did not comply with our statutory requirements for making amendments and must be treated as a nullity.

Respondent makes the further contention, which he has not made before, that Dillon Turney was a resident of the State of Iowa at the time the cause of action accrued; that there is no evidence that he ever lived in Missouri; that there is no evidence that he could ever have been served with process in Missouri prior to the time he was served at the commencement of this action; and that the Missouri Statute of Limitations would not commence to run until he came into this State. The law in Missouri was as respondent contends, prior to 1845. [King v. Lane, 7 Mo. 241, 37 Am. Dec. 27; Tagart v. Indiana, 15 Mo. 209.] However, in the Revision of 1845, the section of the statute providing that the period of limitation did not begin to run against persons who were absent from the State at the time the cause of action accrued was amended by adding the words "who is a resident of this State." This section is now Section 871, Revised Statutes 1929, the applicable part of which reads as follows:

"If at any time when any cause of action herein specified accrues against any person who is a resident of this State, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the State."

Ever since the Amendment of 1845 it has been held that when the defendant is not a resident of the State the statute runs from the time the cause of action accrues and if the plaintiff sees fit to sue him in Missouri, his action "can only be commenced within the periods prescribed in the following sections after the cause of action shall have accrued" (Secs. 860, 861, 862, 863 and 864, R.S. 1929), whether the defendant has been in Missouri one day or for the full period prescribed in those sections. [Thomas v. Black, 22 Mo. 330; Scroggs v. Daugherty, 53 Mo. 497; Fike v. Clark, 55 Mo. 105; Orr v. Wilmarth, 95 Mo. 212, 8 S.W. 258; St. Joseph Grand Island Ry. Co. v. Elwood Grain Co.,199 Mo. App. 432, 203 S.W. 680; Kissane v. Brewer, 208 Mo. App. 244,232 S.W. 1106; Koppel v. Rowland, 319 Mo. 602, 4 S.W.2d 816.] Respondent's action was, therefore barred by our five-year statute.

Respondent's motion for rehearing is overruled.