Sheehan & Loler Transportation Co. v. Sims

Thompson, J., delivered the opinion of the court. This action was before the court on a former appeal. 28 Mo. App. 64. It was originally brought against James T. Sims as sole defendant. The original petition contained two counts. The first was for services rendered in towing barges for the defendant. The second was upon a judgment obtained by the plaintiff in the circuit court of the city of St. Louis, jointly against the defendant Sims and one Rogers. The plaintiff dismissed his action as to the first count and took judgment upon the second count, and the defendant appealed to this court. This court, holding that a second action might be maintained upon the judgment, nevertheless reversed the judgment, because the original, judgment — 229 — which was the foundation of the second count of the petition, being a judgment against the defendant Sims and Rogers jointly, could not be the foundation of an action against Sims separately. Upon the cause being remanded to the circuit court, the plaintiff filed an amended petition, wliich in substance reinstated the first count of its original 'petition which it had dismissed. The defendant Sims filed an answer to this amended petition and ,th,e.plain tiff filed a reply, thus joining issue on the'.answer. The defendant Rogers did not defend or appeal'. I. Thereafter, when the cause was called for trial, the defendant Sims presented a motion in writing to strike out the first count of the amended petition, for reasons which we shall not recite in detail, but which in substance were that such an amendment was not admissible after the cause had been remanded by this court to the circuit court. The court overruled this motion to strike out. The trial resulted in a verdict and judgment for the plaintiff and the defendant Sims again appeals to this court. The first error which he assigns is the overruling of this motion. It is clear that no error was committed in this ruling, for two reasons. (1) The motion to strike out should have been made before the defendant answered, and came too late when the case was called for trial. Spurlock v. Railroad, 98 Mo. 530, 537. (2) The motion was also bad in substance. There is no rule of procedure which cuts off an amendment of the pleadings, otherwise proper, after the cause has been remanded by an appellate court. It is the constant practice to allow such amendments, and an amendment restoring an abandoned count in the petition was recommended by this court in the case of Grant v. Reinhart, 33 Mo. App. 74. II. One paragraph of the answer filed to the amended petition after the cause was remanded by this court consisted of a plea in abatement on the ground of privilege. This plea set up in substance that the — 230 — defendant Sims was a non-resident of this state, and that he was served with summons in this action while attending as a defendant on the trial of another action at law in the circuit court of the city of St. Louis, in which he was sole defendant. This plea in abatement would not have been bad, as the respondent argues, but would have been good in law, if it had been taken in limine and if it had not been waived. Christian v. Williams, 35 Mo. App. 297. But in this case, it was so clearly waived that the attempt to plead in abatement on this ground in the amended answer seems scarcely less than a trifling with the administration of justice. The defendant Sims had appeared by counsel in-the action; had filed a demurrer to the petition on grounds other than jurisdictional; had entered into a stipulation concerning certain substantial steps in the cause; had appealed from the judgment which was rendered against him to this court; had appeared in this court by counsel and secured a reversal of that judgment; and had, after this reversal and before filing his answer to the amended petition, given notice to take depositions. All these facts were proved to the jury by the record, and there was not, and could not have been, any countervailing evidence. There was therefore really no issue on this plea in abatement to try. The circuit court judicially knew the facts shown by its own record in the particular case, and this part of the answer, raising this plea of privilege at this late stage of the proceedings, might have been stricken out on motion. The trial of it was mere supererogation, and any error or irregularity committed in the trial of it could not therefore have been prejudicial to the defendant. This assignment of error, that the court did not try the plea in abatement separately, is, therefore, not well taken. Nor is it material that the jury made no finding in respect of this issue, because they could have made but one finding, and that might have been directed by the — 231 — court on the evidence, and it must have been against the defendant; and we will not reverse the judgment, on the defendant’s appeal, in order to have such a find-' ing made. Nor is it any error of which the defendant can complain that the court, after having admitted evidence on this issue without objection, refused all instructions bearing upon it. All of them that were tendered by the defendant were erroneous, because the records of the court showed, as a mere conclusion of law, that the claim of privilege had been waived. III. The next assignment of error is that the court should have given an instruction in the nature of a demurrer to the evidence at the close of the plaintiff’s case. This contention is grounded upon the fact that it came out in evidence that the services which were the subject of the first count in the petition were the same services for which the judgment, which was the subject of the second count in the petition, had been rendered. But it is to be said that the defendant Sims, in one of the paragraphs of his answer, pleaded that this judgment was void, for the reason that, when the action which resulted in it was commenced, he was a non-resident of the state of Missouri, and had never been served with process therein, and had never appeared therein by counsel or otherwise, and had no notice of the proceeding until long after the judgment had been rendered. He did not, however, set up in his answer, as res adjudicates, that the demand which was the subject of the first count in the petition was the same demand which was the subject of this judgment, though he did allege the fact. He did not do this for the obvious reason that he could not in his answer take the contradictory positions that this judgment, which was the foundation of the second count, was mid because it had been rendered against him without service of process and without any appearance on his part, and that it was at the same time — 232 — good so far as to constitute an estoppel against prosecuting in the first count the demand which was the foundation of that judgment. But while he could not take these inconsistent positions in his answer, he endeavored to have the court take them for him at the end of the plaintiff’s case, by an instruction for a non-suit. This he could not do. He had taken the position that the judgment was void, and he could not recede from that position and claim that it was valid, for the purpose of using it as an estoppel against the prosecution of the first count in the petition. But if there had been any error in this ruling, it was cured by what subsequently took place at the trial. It appeared from the defendant’s evidence that he had never authorized the counsel who professed to appear for him in the action, which resulted in the judgment, so to appear. As process had not been served upon him in that action, that judgment was therefore void as to him, and the jury must have so found, if the question had been submitted to them. To avoid this, the plaintiff, at the close of the evidence, dismissed his action as to the second count and elected to stand on the first count, thereby not disputing so much of the answer as pleaded that the judgment sued on in the second count was void. The defendant is therefore in no position to complain, after having been successful in defeating a recovery in an action on this judgment because it was void, that the court did not at the same time treat it as valid, for the purpose of estopping the plaintiff from maintaining his action upon the cause of action which he had endeavored to ripen into the void j udgment. It was either valid or void, and it could not be at once valid and void for the purpose of enabling the defendant to defeat a recovery of the debt which was its foundation. He elected to take the position that it was void, and it was not admissible for him to change positions in the same action, and, to use an expression which has almost — 233 — acquired a technical meaning in legal procedure, blow hot and cold at the same time. IV. The next assignment of error is that the court should not have permitted the plaintiff to file a reply setting up affirmative matter after both sides had rested in chief. The affirmative matter in this reply consisted simply of an averment of facts showing that the defendant Sims had waived the claim of privilege set up in his answer, by appearing and taking the various steps with reference to the merits of the case which we have already recited. There was no error in this upon any conception. By section 3567, Revised Statutes, “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, * * * by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. ’ ’ There is nothing in section 3572, which prohibits the court from allowing an amendment to the reply after the evidence is all in, so as to make it conform to the evidence ; and the granting of this amendment was within the sound discretion of the court. But, as we have already seen, the issue was scarcely more than a sham issue, for the claim of privilege had been waived by several steps which appeared of record in the case, and consequently no ruling with reference to it could have been prejudicial. V. The next assignment of error is that the following instruction is not good inlaw: “If the jury find and believe from the evidence that plaintiff and Martin Michael did the towing mentioned in the petition in this cause for the firm of Rogers and Sims and at their request, and that said Michael afterwards sold and assigned his interest in the same to the plaintiffs before this suit, and that, within five years next after said towing was done, said Sims departed from and has — 234 — resided out of this state and still continues so to reside, then the jury will find for the plaintiff on the first count of the petition in this cause, unless the jury find and believe from the evidence that such towing has been paid for.” The ground of objection to this instruction relates to the statute of limitations. The services sued for in the first count of the petition were rendered, as alleged therein and as the evidence tended to show, in the year 1877. Consequently the cause of action for such services was barred by the statute of limitations of five years, unless some circumstance had taken place suspending the bar of the statute. The petition set up that such a circumstance had taken place, in the following language: “Plaintiff further states that, shortly after this cause of action in this count stated accrued, to-wit, within five years from and after the accrual thereof, the defendant, James T. Sims, departed from and has ever since resided out of the state of Missouri, and still so resides.” In one paragraph of his answer the defendant Sims pleaded the statute of limitations of five years. The statute applicatory- to this allegation (R. S., sec. 3236) is 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; and if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” The objection taken to the clause of the petition above quoted, and to the above instruction, is that neither of them states that the defendant Sims was a resident of the state prior to his departure therefrom before the expiration of five years from the accrual of the right of action. This clause of the statute applies only in cases where the — 235 — debtor was a resident of the state when the canse of action accrued, and thereafter departed from the state before the bar of the statute had attached. It has no application to a case where the debtor was a non-resident when the cause of action accrued. Orr v. Wilmarth, 95 Mo. 212; Thomas v. Black, 22 Mo. 331; Scroggs v. Daugherty, 53 Mo. 497; Fike v. Clark, 55 Mo. 105. Neither the petition northe above instruction, therefore, stated except inferen tially an exception within this clause of the statute; and without this, or some other exception (and none other was alleged or proved), the demand which was the subject of the first count was barred by limitation on the face of the petition. But we think that this fact is inferentially stated in the petition, and that the defectiveness of the statement is cured by the verdict. Then as to the instruction, it is to be observed that the evidence, so far as it bears upon this point, is not controverted at all. It appears from the evidence that Sims and Rogers (who is impleaded with him as defendant but who does not defend) were, in the year 1877, partners, and as such had a contract with the city of St. Louis for the doing of work on the Mill creek sewer in this city; that the services sued for in the first count consisted chiefly in towing barges of stone which these partners had got out to be used in the construction of the sewer. It also appeared that Sims was present in the city of St. Louis attending to the business of the partnership and of this contract for perhaps a year, and that he left St. Louis in the year 1878. The witnesses were examined with considerable minuteness with reference to the question whether Sims had been a non-resident of St. Louis continuously since 1878, or whether he may not have resided in the city since that time, so that process might have been served upon him ; but it seems to have been taken for granted that, prior to 1878, he was a resident of the city. One witness, Mr. Bollman, — 236 — who had in charge the collection of the bill or bills for the services sued for in the first count, speaks of dunning him repeatedly and of finally calling at his residence on Morgan street and being informed by a lady there that he had left the city. Mr. Rogers, his partner, also stated, but under objection, that, prior to his leaving in 1878, he had lived in the city on Chestnut street. The question which elicited this answer was objected to as irrelevant. Assuming, that it was technically irrelevant, on the ground that there was no averment in the petition that Sims had ever been a resident of this state, yet it does not appear that, by this objection or otherwise, the attention of the court or counsel was called to the defectiveness of the averment of the petition in this respect, or that it had been thought of by either party at the trial. The residence spoken of in the statute (R. S., sec. 3236) is not necessarily synonymous with domicile. It has been held that, although the legal domicile of the debtor (which depends largely upon the question of intent) may continue to be in the state, yet his “ absence from the state,” such as will, for a considerable period, render it impossible to obtain a service of process upon him, is such an absence as will bring the case within this section and suspend the running of the statute of limitations. Rhodes v. Farish, 16 Mo. App. 433; Bensley v. Haeberle, 20 Mo. App. 648. By parity of reasoning it must be held that the residence in the state referred to in the statute is not that permanent residence which is implied by the word domicile, and which confers the rights of citizenship, but is that continuous and habitual dwelling without the state which renders the service of process practicable and easy. That the defendant Sims was in this sense a resident of this state and of this city during the periods when the cause of action embraced in the first count accrued, and for several months thereafter, appears from undisputed evidence — 237 — which, was received without objection. It results that the imperfection of the above instruction consisted in assuming the existence of a fact which was not disputed, and which, if submitted to the jury, ought to have been found in favor of the plaintiff. It is not prejudicial error to give an instruction which assumes the existence of such a fact. Herriman v. Railroad, 27 Mo. App. 436; Price v. Haeberle, 25 Mo. App. 202; Fields v. Railroad, 80 Mo. 203; Barr v. Armstrong, 56 Mo. 577; Caldwell v. Stephens, 57 Mo. 589; Hall v. Railroad, 74 Mo. 298. It seems very clear, therefore, that, while a technical error was here committed, it was an error which could have had no probable influence upon the merits of the controversy prejudicial to the appellant; that if we were to reverse the judgment because of this error it would merely result in an amendment of the petition, curing the defectiveness of the averment above quoted, which must be regarded as cured by the verdict, and in submitting to the jury, upon an instruction cured of the like defect, an issue not controverted by the evidence. The error must therefore be regarded as an error not “materially” affecting the merits of the action, and for such an error we are prohibited by statute from reversing judgments. R. S., sec. 3775. The judgment will accordingly be affirmed. All the judges concur.