Broyles v. Eversmeyer

GRAVES, J. This case involves but a single question of law. Appellant has made a succinct statement of the case in the following taken from the brief: “The plaintiff commenced this suit in ejectment, for the northeast fractional quarter of section 27, township 50, range 2 west, in Lincoln county, September 16, 1908. To this petition defendant filed- a general demal, October 12,1908. At the March term, 1909, the plaintiff filed his amended petition in which he asked recovery of possession of the northeast fractional quarter of section 28, township 50, range 2 west. On the same day, March 22, 1909, that plaintiff’s amended petition was filed, the defendant filed his motion to strike out plaintiff’s amended petition for the reason that it was the substitution of a new cause of action and not an amendment of the cause of action stated in the original petition, and for various other reasons. This motion was by the court overruled and exceptions- taken and preserved and filed at the same terms of court. The plaintiff took no further steps in the case until March term, 1911, and then on the 28-th day of March, 1911, took judgment against defendant by default. On March 31, 1911, the defendant filed Ms motion to vacate and set aside the judgment and in arrest of judg [389] ment. These motions were overruled and exceptions taken and filed. “The question in the case is: Was the second or so-called amended petition an amendment of the original cause of action or the substitution of a new cause of action. There was no waiver or appearance by defendant to the second petition. Can a plaintiff sue for one tract of land and by amendment recover another by default without appearance by defendant?” Changing Cause of Action: Amended Petition. That the last expressions of this court are adverse to the contention of the defendant is conceded by his able counsel. He argues the differentiation of those cases in the first place, and lastly that the broad language used is not a correct enunciation 0f the law. He contends that there is the statement of an entire new cause of action when it is apparent from the two petitions, i. e., the original and the amended, that (1) the subject-matter in dispute is different, (2) that different evidence would be required to support the cases stated in the two respective actions, (3) thal) the measure of damage would be different, (4) that the recovery under one petition would not be a bar to a recovery under the other, and (5) that the same defense would not apply equally well to both petitions. G-enerally speaking these are the tests applied in determining whether there has been such a departure as to make the amended petition state a different cause of action. However, what we have said upon the subject has been with reference to our statute upon amendments. Section 1848, Revised Statutes 1909, reads: “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, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to [390] the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” If in the record before us the reason of the court for permitting the amendment did not appear, the court would be presumed to have been guided by the statutory rule in permitting the amendment. This statute says the court may amend a pleading at any time before final judgment “by correcting a mistake in the name of a party, or a mistake in any other respect.” In permitting this amended petition to stand it could well be concluded that the trial court was convinced that the section number as stated in the original petition was a mere mistake, and such as often happens in such petitions. A.correction of this mistake, if it was shown to the court to have- been a mistake, is one which would, in our judgment, fall fairly within the meaning of the clause of the statute with reference to “a mistake in any other respect.” But in the ease at bar we are not left in the dark as to the reason of the trial court for permitting the amendment. The record nisi reads: “Now at this day come the parties herein by their respective attorneys, and leave is granted plaintiff to file during this day an amended petition correcting error in description, and said amended petition is now filed.” This amounts to a finding of the court that there was a mistake made in the original petition so far as the description of the land was concerned, and plaintiff was given leave to correct the same. Nor is this a harsh construction of the statute, because if the defendant is- placed at any disadvantage by reason of the amendment, such amendment, under' the statute, must be granted upon terms. In this case, the defendant sought no terms, but stood boldly upon his conception of the law. His boldness may prove his' undoing, but [391] if so, the undoing has been one wrought by his own hands. This is the view of the statute taken by Lamm, J., in the case of Wright v. Groom, 246 Mo. 158, and is likewise the view previously taken by this court in the other Missouri eases cited by Judge Lamm. Whether the language used by the court in Wright v. Groom, supra, was strictly called for by the facts of that case, is immaterial, if such language announces good doctrine, and we think it does. Under the opinion in that case as well as the other cases therein cited, this judgment should be affirmed. The statute quoted is broad enough to cover just what was done in this case. Let the judgment be affirmed. All concur.