Summary
In White v. Sievers, 1949, 359 Mo. 145, 221 S.W.2d 118, loc. cit. 121, the Supreme Court of Missouri succinctly said: "We expressly hold that the rule against departure is no longer to be enforced.
Summary of this case from Ross v. Philip Morris CompanyOpinion
No. 41137.
May 9, 1949. Opinion Modified on Court's Own Motion and Motion to Transfer to Banc Overruled, June 13, 1949.
The rule against departure has been abrogated by the new Civil Code, so it was error to dismiss plaintiff's third amended petition on the ground that it was a departure. Amended pleadings should be freely allowed in the absence of prejudice to other parties or harmful consequences of delay. Orders sustaining motions to dismiss prior petitions were not res judicata, as they were not final appealable orders because they granted time to plead. And an order which dismisses a petition but fails to dispose of a counterclaim is not a final appealable order. The case is reinstated with leave to file amended pleadings.
1. PLEADING: Departure Not Permitted Under Old Code. Under the old code of pleading departures were not permitted. This rule was intended to confine a case either to a single cause of action or to consistent actions which were authorized to be joined in the same petition.
2. PLEADING: Rule Against Departure Abrogated by New Civil Code. The rule against departure is inconsistent with the new Civil Code and has been abrogated by said code.
3. PLEADING: Liberal Amendments Under New Code. In the absence of prejudice to other parties or harmful consequences of delay, courts should be extremely liberal in permitting amendments under the new Civil Code.
4. PLEADING: Amended Petitions Filed With Leave. The record shows that the amended petitions were filed with leave. Granting time to plead in an order of dismissal amounts to leave to file an amended petition.
5. PLEADING: Leave to Amend Properly Granted. The fact that extensive depositions had been taken should not prevent the filing of an amended petition. The trial court properly exercised its discretion in allowing the amended petitions to be filed.
6. APPEAL AND ERROR: Judgments: Dismissal of Petition: No Final Judgment: Orders Not Appealable or Res Judicata. Orders of dismissal which permitted amended pleadings to be filed are not final appealable orders and are not res judicata. They merely dismissed the petition and not the action.
7. APPEAL AND ERROR: Counterclaim Pending: Order of Dismissal Not Final. An order of dismissal which failed to dispose of a counterclaim was not a final appealable order.
8. PLEADING: Departure Should be Permitted. Plaintiff should be permitted to file amended pleadings which constitute a departure.
Appeal from Jackson Circuit Court; Hon. James W. Broaddus, Judge.
REVERSED AND REMANDED ( with directions).
Arthur W. Edwards, Lewis F. Randolph, C.W. Prince and Wm. Dennis Bush for appellant.
(1) Under the New Code the court has no discretion to refuse an amendment, because it states an entirely new remedy. Sec. 847.37, R.S. 1939; Galloway v. Galloway, 169 S.W.2d 883; Chestnut v. Mertz, 144 S.W.2d 194; Atlantic Lumber Co. v. Southern Pac. R. Co., 2 F.R.D. 313. (2) An amendment changing the form of the action from equity to law is permissible. Thomas v. Sterling Finance Co., 180 S.W.2d 788; Friederichsen v. Renard, 247 U.S. 207, 62 L.Ed. 1075, 38 S.Ct. 450; 41 Am. Jur., sec. 307, p. 503; State ex rel. v. McGee, 328 Mo. 1175, 44 S.W.2d 36. (3) The addition of a prayer for punitive damages does not change the cause of action. Knight v. Quincy, O. K.C.R. Co., 120 Mo. App. 311, 96 S.W. 716. Casey v. St. Louis S.F.R. Co., 146 Mo. App. 614, 124 S.W. 562; Campbell v. Crutcher, 224 S.W. 115; 49 C.J. 527, sec. 697. (4) No departure in the instant case even under the common law. A new count setting up an entirely new remedy can be added by amendment where the action newly pleaded arose out of the same transaction.
W.F. Woodruff and Lucian Lane for respondent Southeast State Bank.
(1) Judgment of Judge Southern of March 4, 1948, dismissing plaintiff's second amended petition was a final, appealable judgment. Since no appeal was taken it became res adjudicata and is not open to review on this appeal. Jones v. Williams, 209 S.W.2d 907; Koplar v. Rosset, 214 S.W.2d 417; Keller v. Keller, 352 Mo. 877, 179 S.W.2d 728; Fenton v. Thompson, 352 Mo. 199, 176 147 S.W.2d 456; Husser v. Markham, 210 S.W.2d 405; Edwards v. Sittner, 213 S.W.2d 652. (2) The judgment of Judge Broaddus of March 26, 1948, dismissing counts two to seven of plaintiff's third amended petition became a final and appealable judgment when plaintiff's motion to set the dismissal aside was overruled. Since no appeal was taken it was res adjudicata and is not open to review on this appeal. Authorities under Point (1); Husser v. Markham, 210 S.W.2d 405; Sec. 126, Civil Code; Rule 3.29 of Supreme Court. (3) The second amended petition was properly dismissed because it was a departure from the first amended petition. Counts two to seven of the third amended petition were properly dismissed because of departure, and because they were exact duplicate of petition already dismissed. Sec. 81, Civil Code; Campbell v. Webb, 356 Mo. 466, 202 S.W.2d 35; Brinkman Realty Co. v. Deidesheimer, 201 S.W.2d 503; 13 Missouri Law Review 442; Jacobs v. Chicago, P. St. L.R. Co., 204 S.W. 954; Scoville v. Glasner, 79 Mo. 449; State ex rel. v. Cook, 353 Mo. 272, 182 S.W.2d 292; Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491; Bader v. Beck, 173 S.W.2d 647; Mineral Belt Bank v. Elking Lead Zinc Co., 158 S.W. 1066; Ross v. Cleveland and A. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Heman v. Glann, 128 Mo. 325, 31 S.W. 589; Scott v. Taylor, 231 Mo. 654, 132 S.W. 1149; Dyer v. Harper, 336 Mo. 52, 77 S.W.2d 106; Lee v. W.E. Fuetterer Battery Supplies Co., 323 Mo. 1024, 23 S.W.2d 47. (4) The ex parte action of plaintiff on March 31, 1948, in obtaining order overruling the motion to set aside the judgment of dismissal of counts two to seven of the third amended petition, his election to stand on counts two to seven thereof and refusal to plead further, and his voluntary dismissal of count one was a deliberate and intentional default and entitled defendant bank to judgment on its counterclaim. Graves v. Chapman, 248 Mo. 83, 154 S.W. 61; McGrew v. Thompson, 184 S.W.2d 994; Sec. 56, Civil Code; Dumey v. Schoeffler, 20 Mo. 325; Creameries of America, Inc., v. Benton, 152 S.W.2d 1049; Sec. 67, Civil Code; Terry v. Michalak, 319 Mo. 290, 3 S.W.2d 701; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892. (5) Plaintiff by his action on March 31, 1948, in standing on counts two to seven of the Third Amended Petition, declining to plead further in the case and dismissing count one had voluntarily defaulted with respect to defendant bank's counterclaim. Anderson v. Briscoe, 201 S.W.2d 432; Authorities under Point (4). (6) Plaintiff by his voluntary action on March 31, 1948, selected his own course and was committed to it and he cannot now convict the court of error in its refusal to permit him to switch to an entirely different course through the attempted amended answer and cross petition to the bank's counterclaim. Nulsen v. Natl. Pigments Chemical Co., 346 Mo. 1246, 145 S.W.2d 410; Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353. (7) The amended answer and cross petition were filed without leave of court as required by Civil Code, Section 81, and were filed more than a year out of time with no showing of excuse or justification for the delay. Secs. 60, 81, Civil Code; Sec. 6(d), Civil Code; Russell v. Nelson, 317 Mo. 148, 295 S.W. 118; Secs. 40, 76, Civil Code; Scullin Steel Co. v. Miss. Valley Iron Co., 308 Mo. 453, 273 S.W. 95. (8) The amended answer and cross petition contained only matters that had twice been dismissed from the case. To have permitted the amendments would not have been in furtherance of justice but would have worked an injustice to defendant bank by permitting plaintiff to continue the course of vexation, harassment, and abuse, apparent from the whole record. Oliver v. Scott, 208 S.W.2d 468. (9) The judgment on the pleadings on bank's counterclaim was entered because of plaintiff's voluntary and intentional default and refusal to plead further. It is fully supported by the record. Secs. 55, 56, 67, Civil Code; Creameries of America v. Benton, 152 S.W.2d 1049; Electrolytic Chlorine Co. v. Wallace Tiernan Co., 328 Mo. 290, 41 S.W.2d 1049; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7; Sec. 1244, R.S. 1939; 49 C.J., sec. 602; Still v. Glass, 222 S.W. 893; Aeolian Co. v. Smith Medcalf Co., 7 S.W.2d 447.
The question for decision is one of procedure, and arises under the new Civil Code. Does the new code permit a plaintiff to depart from his original petition and by an amended petition substitute a wholly different claim for the one originally pleaded? Under the old code such an amendment was held improper on the ground of departure, and was not permitted. But we now conclude that the rule against departure has no application under the new code, so this kind of amendment is not barred because of its character. It is subject only to the general rules governing the procedure for making amendments.
The question arises from these circumstances. Plaintiff filed an action for an accounting against the defendants, a bank and its president, alleging he had borrowed money from them at different times, and had deposited certain instruments with them as collateral. He listed the instruments which consisted of mortgage notes, a warranty deed conveying in blank, i.e. without any grantee named, an insurance policy, and shares of stock in a building corporation. He asserted the defendants had collected the proceeds from such collateral in amounts unknown to him. He claimed he has repaid all of his loans in full, and asked for the return of his collateral and for an acounting. Thereafter, depositions were taken at which books and records showing his accounts were ordered produced.
Defendant bank filed a general denial, and a counterclaim on a promissory note asking judgment for $7,712.50 for principal and interest. Plaintiff first filed a general denial in reply to the counterclaim.
Then plaintiff filed his second amended petition which starts the chain of events giving rise to the present dispute. In this petition plaintiff abandoned his original action for an accounting. In six separate counts he alleged the fraudulent conversion of each of his instruments given as collateral or the property represented thereby, and asked for six separate judgments for damages both actual and punitive.
Defendants filed a motion to dismiss this petition on the ground it substituted claims wholly new and different from the one originally alleged, and thus was bad because of such departure. The motion was sustained by the judge then sitting in the assignment division, and the petition was dismissed.
Thereafter, plaintiff refiled his six counts for damages through other pleadings. In his third amended petition he refiled his action for an accounting and joined with it the six counts for damages. A motion to dismiss the counts for damages was filed on the grounds they were the same as those previously pleaded in the second amended petition which had been dismissed by the previous assignment judge, and that they [121] constituted a departure. The motion was sustained and the counts were dismissed. Plaintiff then refused to plead further by petition, and voluntarily dismissed his first count, the one for accounting, without prejudice. But this did not dispose of all the issues in the case because the bank's counterclaim was still pending.
Plaintiff then filed an amended reply to the counterclaim stating that the promissory note on which it was based was procured by fraud. He joined with his reply his own counterclaim against defendants in which he again set out his six counts for damages. His reply was dismissed, also on the ground of departure. His counterclaim was dismissed on the ground the six counts had been previously dismissed when filed as an amended petition. He declined to plead further, and judgment on the pleadings was entered against plaintiff and for the bank for $8,248.75. Defendant Sievers seems not to be resisting this appeal, only the bank appears here as an active respondent.
The rule against departure through amended pleadings has been consistently enforced in this state under the old code. Even though we liberally construed our old code in permitting amendments, still we held it did not go so far as to permit a plaintiff to substitute an entirely different cause of action in his amended petition for that originally stated in his first petition. Or, as Judge Lamm put it, "grafting a separate and independent suit on the stem of the original proceeding" would not be permitted. As evidence of our then stricter view of pleading, we held that an amendment presupposes a change in something existing, not a substitution of something else for that which has been stated. To inject by an amendment a different cause of action for the one stated in the original petition was not permitted, because, we said, that would be a departure.
One of the purposes of the rule against departure was to protect a defendant from having to prepare a new defense in the same action against a charge inconsistent with the original one. If the amended petition required different evidence to support it, or the application of a different measure of damages then it constituted a departure. It was urged such rule narrowed the issues, and tended to prevent confusion and uncertainty. Later on we grew more liberal. We held that where an amended petition merely added another cause of action arising out of the same transaction or belonging to the same class of action which could be properly joined under the statute, it was all right. We said, "the plaintiff cannot be allowed (by amendment) to introduce an entirely new cause of action, but may by amendment introduce such additional causes of action as under the provision of the statute could be united in the same petition." Galloway v. Galloway (Mo.) 169 S.W.2d 883.
Thus the rule against departure was intended to confine a case first to a single cause of action, then later to consistent actions which were authorized to be joined in the same petition under the old code.
But this rule is not now consistent with the new code. The new code adopts the very opposite view. It is intended to permit, and under certain conditions to require, the joining of all claims existing between the parties in one action. There may be an unlimited joinder of claims between the same parties. Sec. 37, Laws 1943, 353; Mo. RSA, 847.37; Carr, § 166. The old statutory restriction of Section 917, R.S. 1939 limiting the joinder of causes of action to particular classes of actions has been repealed. Now independent claims may be joined in a petition or in a counterclaim. "They need not arise out of the same transaction or occurrence, or series thereof, and a common question of law or fact need not exist. They may include both contract and tort claims; may be legal or equitable, and may be joined as independent or as alternate claims." Fawkes v. Fawkes (Mo. App.) 204 S.W.2d 132. It follows that the rule against departure can no longer stand since a party may now state as many separate independent claims as he has regardless of consistency.
We expressly hold that the rule against departure is no longer to be enforced. It has been abrogated by the new code. Any statements contained in Campbell v. Webb, 356 Mo. 466, 202 S.W.2d 35, relied on by defendants, which they understand to indicate [122] an opposite conclusion, are not decisive of the question because that case did not consider the abrogation of the rule.
We now consider the question of plaintiff's right to file the various amended pleadings under the new code. Amendments are now unlimited in scope. Carr, § 214. Therefore, we are concerned only with the justice of authorizing the filing of the various amendments and whether defendants were prejudiced by them. Amendments are subject to the statutes of limitations but no such point has been raised in this case.
The new Civil Code permits a party to amend his pleading as a matter of course at any time before a responsive pleading is filed and served. Sec. 81; § 847.81 Mo. RSA; Carr, § 214. After that time a party may amend his pleading only with leave of court or by written consent of the adverse party. We have no written consent of the adverse party in this case. But the new code provides that "leave shall be freely granted when justice so requires." In the absence of prejudice to other parties or harmful consequences of delay, courts should be extremely liberal in permitting amendments. "Under the new code a trial court may permit a plaintiff to file any number of amended petitions if in the opinion of the court justice so requires." Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907. And see Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25.
In defendants' motion to dismiss the second amended petition it is alleged no leave had been first obtained, even though the record shows plaintiff had been granted leave. As to the third amended petition we find at the time the court sustained defendants' motion to dismiss the second amended petition it granted plaintiff, in the same order of dismissal, thirty days time in which to plead. This amounted to leave to file the next amended petition, and under the circumstances here it was not necessary for plaintiff to obtain any additional leave before filing it. Accordingly we hold such amended petitions were filed with leave. The record also shows plaintiff's amended reply to the bank's counterclaim was filed with leave.
We do not find that defendants have set out how they were prejudiced or harmed by the delay in filing any of the amended pleadings except the allegation "that extensive depositions have been taken and very substantial costs have been incurred in this case on the basis of the pleadings theretofore filed." Even though such be the case that would not ordinarily be a sufficient ground for the court unconditionally to refuse leave to file an amended pleading if in its discretion the court found justice would be better served by permitting the amendment. If allowing an amendment would unjustly penalize a party because of court costs already incurred under prior pleadings, the court in its discretion may grant leave to amend upon payment of such costs or upon terms as its deems just. An application for leave to file an amended pleading may be viewed as a motion under Section 60 of the new Civil Code which says "an application to the court for an order shall be by motion." And Section 1407, R.S. 1939, Mo. RSA provides that the court has discretion to give or refuse costs on all motions. And where the court grants leave to amend on its own motion, as it did in this case, it may impose such terms as are justified because of the amendment when the amendment is filed.
The court's exercise of discretion in permitting plaintiff to file his various amended pleadings in this case was consistent with the requirements of the new code, and was proper. Whether amendments which may be offered after this case is remanded should be permitted only upon terms will be also a matter for the court's discretion.
Finally, respondent argues that the orders dismissing plaintiff's petitions were judgments from which plaintiff could have appealed; and since he failed to take a timely appeal they have become final and res judicata. We held in Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, supra, that an order dismissing a petition may be a dismissal of the action, and therefore a final judgment from which a party has the right to appeal, and have the question of the sufficiency of his pleading determined by an appellate court. We based our ruling on the provision of the new code that [123] a dismissal of an action with prejudice operates as an adjudication of the merits. The code defines a dismissal with prejudice, in part: ". . . and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify." Sec. 101; § 847.101 Mo. RSA; Carr, 800. In that case we pointed out that demurrers had been abolished, and under the new code the sufficiency of a petition is now raised by a motion to dismiss. We held an order dismissing a petition because no cause of action was stated may be a dismissal of the plaintiff's action with prejudice, as distinguished from a dismissal merely of the pleading. Unless the trial court shall otherwise specify, an order dismissing a petition is held to be a dismissal of the plaintiff's action rather than a dismissal of the pleading only. When the court dismisses plaintiff's action, the order of dismissal is ordinarily a final, appealable judgment.
However, there is no fixed or formal phrase which must be used to specify that the dismissal of a petition is not intended as a dismissal of the plaintiff's action. If the order shows in any way that the court did not intend the dismissal of the petition then and there to put an end to the plaintiff's action it amounts to a dismissal of the petition only and not of the action.
As we have already stated, the order in this case dismissing plaintiff's second amended petition contained this provision: "Now plaintiff is by the court given thirty days in which to plead herein." And the order dismissing the six counts for damages in plaintiff's third amended petition also stated: "Plaintiff is given 10 days in which to file an amended petition herein." It is clearly evident that the court did not intend either order to be a dismissal of the action, but intended that only the pleadings or parts of them be dismissed. In granting time to file further amended petitions in the still pending action the trial court sufficiently "specified" that the orders of dismissal were intended to affect the pleadings only, and not the action itself. In fact, including permission to file an amended petition in the order of dismissal has been urged as a simple device to show the court intends to dismiss the pleading only and not the action.
To repeat, it is only when the court sustains a motion to dismiss a petition without stating anything in the order of dismissal to indicate the action is to continue, that the action itself is dismissed.
Since in this case the court did indicate in the orders of dismissal that the plaintiff's action was to continue by including permission to file amended petitions, the orders of dismissal affected merely the offending pleadings and did not dismiss the action. Accordingly, such orders are not final judgments. Therefore, the rule of res judicata cannot apply. See Restatement of Judgments, § 41.
After the court dismissed the six counts of the third amended petition plaintiff voluntarily dismissed the remaining count, and refused to plead further by petition. Thus the entire petition stood dismissed. But the order of dismissal was not appealable because the bank's counterclaim still remained undisposed of. A judgment must ordinarily dispose of all parties and all issues in the case to be a final judgment for the purposes of appeal. Magee v. Mercantile-Commerce B. T. Co., 339 Mo. 559, 98 S.W.2d 614. A case apposite on the facts is Severs v. Williamson (Mo. App.) 198 S.W.2d 368. Furthermore, plaintiff was attempting to continue on the identical theory of the dismissed petition by repeating it in his amended reply.
In view of the conclusions we have reached it is unnecessary to consider other points raised here by respondent.
Since departure is no longer a bar to amending pleadings, plaintiff in this case should be permitted if he wishes to plead either by petition or reply his six counts in damages, and to file his amended reply to the bank's answer and counterclaim.
Accordingly, the judgment is reversed and the cause is remanded. The trial court is directed to reinstate the case against both defendants, and to permit the parties to file such amended pleadings setting up all such claims and defenses as are now [124] permitted by the new code, and to make all such amendments as may be just under the circumstances, and upon such terms as the court deems proper.
Reversed and remanded with directions. All concur.