Missouri, Kansas & Texas Railway Co. v. Bagley

The opinion of the court was delivered by Johnston, J. : Does the answer in the second suit, which sets up prior proceedings in the present action, preclude a review of the latter ? It is contended that the plaintiff, having pleaded that judgment and obtained, a benefit, was, therefore, not in a position to contest its validity. The action of the company, as will be seen, does not affirm that the judgment was regularly obtained and that the proceedings in the case were free from error. The existence of the judgment was recognized, it is true, but no money or property awarded was accepted by the company, nor would its right to plead that 'the plaintiff was prosecuting two actions upon the same cause be affected by the reversal of the judgment. From the averments of the answer, which is said to constitute an estoppel, it is manifest that the pleader was challenging the right of the plaintiff to split his causes of action, or prosecute two actions upon a single indivisible cause. To show the court that the plaintiff was prosecuting an action against the defendant involving the same matters, the pleader set up all the proceedings in the former cause, including the judgment. It was not — 193 — the judgment alone that was pleaded as a bar, but it was all the steps in the action, of which the judgment was one, and which it was necessary to mention in order to give a correct history of the litigation. If the plaintiff’s petition in the second cause had shown on its face that there was “another action pending between the same parties for the same cause,” it would have been insufficient, as that fact is a specific ground of demurrer. (Civil Code, § 89; Gen. Stat. 1901, §4528.) It cannot be that the setting up of such a defense in an answer in the second action admits plaintiff’s right of recovery in the first. The defendant was claiming nothing on account of the judgment to which it would not have been absolutely entitled if no judgment had been rendered. An averment that the' plaintiff had sued in a former action for the same cause is not inconsistent with a claim that plaintiff was not entitled to recover in such action. Nor is there anything inconsistent between an attempt to prevent the plaintiff from prosecuting a second action for the same cause and an appeal from the judgment rendered in the first action. Both rights are given by law, and the exercise of one is no reason for the forfeiture, of the other. No relief was granted to the company in the second case, upon the theory that there had been a surrender of the right to review. On the contrary, the answer showed that the preliminary steps had been taken by the company to contest the right of any recovery, and to secure a reversal of the judgment. The relief which the company did obtain was such as it was entitled to, whether a proceeding for the reversal of the judgment was brought or not, and the plaintiff did not lose any legal right by reason of the defense that was made, because he had no right to prosecute two actions upon the same — 194 — cause at the same time. No rights were therefore surrendered or sacrificed by pleading the existence of a judgment, and an essential element of the estoppel claimed was lacking. The answer, as we have seen, is an ordinary pleading of another action pending, and the defendant, instead of conceding the validity of the judgment, is not only fighting a- recovery in that case, but he is insisting that he shall not be harassed by two actions on ,a single cause. It is true the answer spoke of the judgment in which the causes of action were merged as being final, and also that it concluded the plaintiff as to the amount of damages to be recovered for breaches of the contract, as well as that it was res judicata, but these averments, although unnecessary, were not untrue, and they did not operate to change the character of the judgment. The causes of action were merged in the judgment, and the prosecution of error does not affect the merger until the judgment is reversed. (Cloud, Adm’r, v. Wiley et al., 29 Ark. 80.) So, also, was the judgment final from the time of its rendition until its reversal on error. The proceedings to review did not suspend the effect of the judgment, nor do more than stay its execution. It remained a final judgment, which was conclusive upon the parties as an adjudication while the appeal was pending and until it was actually reversed. The assertion that there was error in the record of the judgment does not affect the status of the judgment nor negative its finality as an adjudication in which the causes of action were merged. The act of the defendant in setting up the judgment did not affect its character .or the absolute rights of the parties. The dismissal of the second suit may be said to be a benefit to the defendant, but the benefit did not arise — 195 — from pleading the judgment itself. It is well settled that some benefits may be accepted without precluding' an appeal. In Elliott on Appellate Procedure, section 151, it is said :• “If a party does what he has a right to do without affirming, in the act he performs, the validity of the judgment, he does not estop himself from prosecuting an appeal. . . . There are cases where a remote and incidental benefit is derived, and yet the right of appeal exists. Thus, where a plaintiff prosecutes two actions for the same cause, the defendant, by moving to be released from one of them, does not preclude himself from prosecuting an appeal.” (See, also, Cloud v. Wiley, supra; The Pittsburg, Fort Wayne & Chicago R. W. Co. v. Swinney, Executrix, 91 Ind. 400 ; Tyler v. Shea, 4 N. Dak. 377, 61 N. W. 468, 50 Am. St. Rep. 660 ; Bank v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683 ; Brewster v. Wooster, 26 N. Y. Supp. 912 ; Ostrander v. Campbell, 51 Hun, 637, 3 N. Y. Supp. 597; Cornell v. Donovan, 14 Daly, 292; Paine v. Ins. Co., 11 R. I. 411; Faber v. Hovey, 117 Mass. 107, 19 Am. Rep. 398.) We conclude that the averments of the answer in the second case did not take away the right of the defendant to a review of the judgment in the first. The next matter for consideration is the contention that the causes of action on which judgment is founded were barred by the three-year statute of limitations. The contracts pleaded were oral, and the breaches counted on occurred prior to November 1, 1892. The petition on which the first trial was had was filed in good time, but that pleading was held bad in that it did not state a cause of action. (Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759.) The amended petition, on which the second trial was had, was filed May 15, 1899, more than six years after the causes of action pleaded had accrued. The statute of limitations — 196 — barred such causes in three years after they accrued, and if the original petition did not arrest the statute the causes were all barred. As will be seen from Railway Co. v. Bagley, supra, the first petition wholly failed to state any cause of action against the defendant. The plaintiff undertook to plead a liability upon a contract, but that which was pleaded was not a contract, and it created nó liability whatever. According to the original petition, the railway company proposed to ship corn to Texas within a certain time and for a stipulated rate, but no promise or obligation on the part of the plaintiff to ship corn over defendant’s road was alleged. While the pleading was in the form of-a petition, it set up no more than an unaccepted offer made by the railway company — something which lacked an essential element of a valid obligation. Con tracts cannot arise from the action of one party alone: j and where there is a lack of mutuality of obligation there is no contract. (Woolsey v. Ryan 59 Kan. 601 ; 54 Pac. 664; Railway Co. v. Bagley, supra, and cases cited.) The amended petition did set up contracts possess ing the essential element of mutuality, but that pe Í tition was filed more than three years too late, unless the original petition arrested the running of the statute. Will the filing of a petition which states no liability against the defendant arrest the statute? Or, rather, did the filing of an amendment which stated a cause of action, relate back to the filing of the original petition wherein no cause of action was alleged? Our code makes liberal provisions for amending pleadings both in form and in substance, but no amend-' ment is permissible which changes substantially the claim or defense, or which introduces a new claim or defense. (Civil Code, §139; Gen. Stat. 1901, — 197 — §4573.) So it was held in A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, that a new and !distinct cause of action, barred by the statute, could not be engrafted on a petition by way of amendment so as to deprive the defendant of the defense of the statute of limitations. In Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938, it was said : “It is true, as a general rule, that amended pleadings relate back to the commencement of the action, but this rule never obtains where a separate and distinct cause of action is set up by way of amendment. Even though the amendment might otherwise be allowable, it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations, if the new cause of action would otherwise be barred.” Those cases differ somewhat from the case in hand, as in them the new causes were added by amendment to other and distinct causes that had been previously pleaded, while here the amendment sets up a cause of action where none whatever had been previously alleged. The principle which ruled the cited cases, however, applies. A cause of action pleaded by way of amendment for the first time is new, and the departure is as great as the engrafting of a distinct cause of action which is barred upon an original one that is not barred. The original petition, as we have seen, set up a one-sided agreement, which this court has said is a nullity. As no liability against the defendant was stated, no cause of action, formal or informal, was alleged, and, hence, there was nothing to arrest the statute of limitations. In respect to amendments, it has been said: “At common law the general rule was that there — 198 — must be something in the record to amend by. But under the statutes of amendment the power of the court is not now considered to be thus limited. Nevertheless, there must be something to amend, and a declaration or complaint which wholly fails to state any cause of action whatever cannot be amended, at least in those states where an amendment introducing a new cause of action is not allowed.” (1 Encyc. Pl. & Pr. 509.) There is ample power to permit amendments which alter forms, supply omissions, and cure defects in pleadings where they state a cause of action, but if the facts alleged wholly fail to show a right of recovery, and the .bar of the statute is pleaded, a new cause of action cannot then be attached. If there is only a defect in form, or a faulty statement of a cause of action, an amendment may be allowed restating a cause of action which has been defectively stated, and in such cases the amendment would relate back to the filing of the petition. In Service v. Bank, 62 Kan. 857, 62 Pac. 670, which was an action on a note, an amendment was permitted by which the assignee' of the payor was substituted for the payee at a time when the note would have been barred if action thereon had not been brought until that time, but there a cause of action was alleged in the original petition and the amendment related back to the beginning of the action. The supreme court of Illinois had this identical question before it for consideration, and while holding that if the action was originally brought within the statutory period and an amendment is afterward filed, which simply restates the right of recovery originally pleaded, the amendment is treated as filed at the time the action was brought, and the statute — 199 — of limitations will not operate as a bar. Yet it was also held: “Where an original declaration fails to state any cause of action whatever and an amended declaration does, upon an issue of the statute of limitations the amended declaration will be deemed to have been filed and the action to have been instituted at the time of the making of such amendment, although such amendment is confined to a more complete statement of the same cause or right attempted to be stated in the original.” (See, also, I. C. R. R. Co. v. Campbell, 170 Ill. 163, 49 N. E. 314; Eylenfeldt v. Steel Co., 165 id. 185, 46 N. E. 266 ; R. R. Co. v. Lacey, 49 Ga. 106 ; Phelps v. R. R. Co., 94 Ill. 548; Lasater v. Fant, Tex. Cir. App., 43 S. W. 321; Sicard v. Davis, 6 Pet. 124, 8 L. Ed. 342.) It has been suggested that section 23 of the civil code (Gen. Stat. 1901, §4451) saves the proceeding from the bar of the statute, because the action was originally brought within due time ; that plaintiff failed otherwise than on the merits, and that the new action was brought within one year after the reversal and failure. Only one proceeding was begun. No new process was ever served, nor was there any dismissal or discontinuance of that proceeding. It has been held that the provisions of the section referred to have no application to proceedings like this one. (Hiatt v. Auld, 11 Kan. 176 ; A. T. & S. F. Rld. Co. v. Schroeder, 56 id. 734, 44 Pac. 1033. See, also, Dob-son v. Noyes, 39 id. 471, 18 Pac. 697.) Since the original petition did not state any right of action whatever, and was wholly insufficient as a basis for a judgment, it did not operate to arrest the statute of limitations, and, hence, the causes of action set up by way of amendment were barred at the time they were first pleaded. The judgment of the district court will therefore be — 200 — reversed, and the cause remanded for such further proceedings as may be taken. Smith, Cunningham, Greene, Pollock, JJ., concurring. <