Barnes v. Prewitt

Hall, J. The plaintiffs, other [than the husbands of the married women, are grandchildren of David. Prewitt, deceased, and children of Martha Sandusky, deceased, who was a daughter of the said David PrewittMartha Sandusky died before the death of her father. The original petition alleged that David Prewitt, in his lifetime, conveyed real estate and personal property of the value of ten thousand dollars to the defendant, in trust, to hold for the use and benefit of defendant and the other children of the said David Prewitt, the said Martha Sandusky being one of them; and that, at the time of the death of the said David Prewitt, he was possessed of a large amount of personal property, which the defendant converted to his own use. Plaintiffs claimed in said petition that they were entitled to one thousand dollars out of said estate, then wrongfully held by defendant, and prayed the court for a decree ascertaining and declaring the rights of plaintiffs, etc. To this petition the defendant filed an answer consisting óf a general denial. There was a total failure of proof as to all the allegations of the petition concerning a trust. The evidence did tend to show that David Prewitt, at the time of his death, was the owner of a promissory note for the sum of $2,782.72, and that said note was converted by the defendant to his own use, and that a settlement was made by the defendant with Samuel D. Sandusky, as agent for the plaintiffs with respect to said note, and that in such settlement there was found to be due plaintiffs the sum of $347.84. On the petition and evidence the court rendered judgment against the defendant for the sum of $347.84, and interest thereon at the rate of six per cent, per annum from the first of December, 1873. The defendant filed a motion for a new trial, which was overruled by the court. The bill of exceptions recites: “The court thereupon directed the plaintiffs’ attorney to file an amended petition in aid of the judg [168] ment rendered, specifying the allegations that might be inserted in such amended petition. The plaintiffs’ attorney thereafter, on the twelfth day of December, 1884, filed an amended petition in said cause as follows : ” and then the amended petition is set out in full. The petition alleged that David Prewitt died intestate December 1, 1873, seized of the note hereinbefore mentioned ; that no administration was ever had on the said estate; that upon the death of the said David Prewitt the defendant took charge of the said note and converted the same to his own use. The petition then avers the settlement by the defendant with the agents, of plaintiffs already referred to, various demands for the amount therein agreed upon, various promises by the defendant to pay, and his refusal and failure to make such payments. From this statement of the facts it appears that, under the evidence, and the original petition, the defendant should have had judgment. The plaintiffs had made out no cause of action. There was no evidence of a trust. For the conversion of the personal property left by the deceased, David Prewitt, the latter’s heirs did not have a cause of action. The right to the possession of that property belonged solely to the personal representative of David Prewitt (State ex rel. v. Moore, 18 Mo. App. 410), and the right to maintain an action on account of its conversion said representative alone had. So far as concerns the right of the plaintiffs to recover on the ground of the settlement referred to, it is sufficient to say, that the original petition was silent as to the said settlement, and that, therefore, under said petition, the plaintiffs had no such right, since the plaintiff must recover on the cause of action alleged in the petition; and that the judgment cannot be upheld by the amended petition, because it stated a new cause of action, in so far as concerns the said settlement. In no other respect was the amended petition better than the original petition. Section 3570, Revised Statutes, is relied upon as authority for the filing of the [169] amended petition. That statute provides : “After final judgment rendered in any cause, the court may, in furtherance of justice, and on such terms as may be just, amend, in affirmance of such judgment, any record, pleading, process, entries, returns, or other proceedings in such cause, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by rectifying defects or imperfections in matters of form, and such judgment shall not be reversed or-annulled therefor.” This statute does not authorize the amendment by the statement of a new cause of action. Judgment reversed and cause remanded. All concur.