Baker v. Raley

1. Practice — Pleading—Failure of Proof — 'Variance.—'Wliere the averment of a petition was that a suit was assigned by the plaintiff therein to B, while the proof was that it was assigned to A, and by A. assigned to B; held not to be a failure of proof— not more than a variance. 2. - Several Causes of Action in one Count. — Where there are several causes of action stated in one count, the objection must be taken by demurrer, or it will be considered that it was waived. The point can not be made by motion in arrest. Union Ble. Trenton v. Dillon, 75 Mo. 380. 3. -To Make Pleading Definite. — If a petition should fail to mate a particular statement of items, so as to be sufficiently explicit, motion should be “that the petition be made definite, etc.” 4. Parties — Liability for Costs Created by Him. — Notwithstanding one may not be substituted as a party, if he is the real party, he may when discovered, be held liable for debts which he created. Philips, P. J., dissents.

Appeal from Schuyler Circuit Court, Hon. Andrew Ellison, J. Statement of case by the court. This action is based on ■ the following petition: “Plaintiff states that on or about the 15th day of November, 1876, one C. C. Fetters, instituted suit by attachment, in this court for debt against David and Francis McElroy, whereby he sought to recover from the •defendants therein $165.00 and costs of suit; that after-wards at the term 187- of this court, said cause was tried and finally disposed of, and a verdict given for the defendants therein, and judgment rendered therein adjudging plaintiff to pay the costs of said suit, that during the pendency of said suit and for the necessary prosecution and defence of the same, a large amount of costs in the nature of officers’ and witnesses’ fees, was made, which were taxed to the parties entitled thereto as follows, to-wit: (Here follows the amount due each officer and witness by name), total amount of costs as due the plaintiff $140.67, as will more fully appear from an itemized statement, herewith filed, that all of said sums have been for value, sold and assigned to this plaintiff, and though long past due remain wholly unpaid ; plaintiff further says that after the institution of said suit and long prior to the determination thereof, the said C. C. Fetters, plaintiff in said suit as aforesaid, for a valuable consideration, to-wit: $50.00 to him then paid by this defendant, sold, assigned, and transferred to this defendant absolutely the debt therein sought to be recovered, with full power to this defendant to prosecute said suit in Ms own behalf, and collect the debt therein claimed to be due,’ for his own exclusive use and benefit. Plaintiff further states that by virtue of the aforesaid purchase of said demand by this defendant, he became and was from and after the date of said purchase the absolute owner of said demand and the real party plaintiff in said cause; that the same was from and after said purchase as aforesaid prosecuted in the interest of and for the exclusive use and benefit of this defendant, by reason of all of which plaintiff says defendant became and is now liable for the costs of said suit, and though often requested so to do, he has failed and still fails and refuses to pay the same. Wherefore plaintiff prays judgment against defendant for the said sum of $140.67, costs accrued as aforesaid.” The cause was tried by the court without a jury and judgment rendered for plaintiff for $21.86, and defendant appeals. Some question was made as to the assignment of the clerks’ fees included in the judgment, but these were remitted and thereby eliminated from the questions presented. The evidence showed that the cause of action was assigned by Fetters, the plaintiff therein, to one Griggs, and by Griggs, to Hughes and Raley, the latter being the defendant in the present action. The court below ruled that the only costs chargeable to this defendant, was that made after he purchased the suit. Defendant asked and the court refused the following declarations of law (omitting one in regard to clerks’ fees), (1) “The court declares the law to be that under the evidence in this case the plaintiff can not recover,” (2) “That the assignee of a claim in suit is not liable for the costs made unless he is substituted as a party.” (3) “That the plaintiff has failed to prove the case made by the petition.” Defendant makes the following points of objection here: (1) “Plaintiff’s proof fails to make Ms case as stated.” (2) “There are several causes of action stated in one count.” (3) “ There is no statement of the items of the account sued on.” (4) “The petition does not state a cause of action.” I. Plaintiff’s proof fails to make ont his case as stated and there are several canses of action in one count. There is no statement of the items of the account sued on. II. There was an entire failure of proof in this case. The averment is of a sale to A, and the proof is of a sale to B, and an assignment by B to A. This is not a variance, but a failure of proof. Faulkner n. Faulkner, 73 Mo. 335. III. There are several causes of action in one count. They are separate and independent accounts due to different parties and asigned by them to plaintiff. The petition is therefore bad on demurrer, or arrest. 36 Mo. 215; 34 Mo. 134; 41 Mo. 257; 39 Mo. 457. IV. There is no statement of the items of the account sued on anywhere. This must be done in the petition or a copy attached. Revised Statutes, Mo., 1879, section 3547. Neither was done here. Y. The petition does not state a cause of action and so no evidence could be heard. Section 3671 (Revised Statutes, Mo., 1879), provides for the substitution of the purchaser of a claim in suit, for the original ■ plaintiff. “This implies that upon a substitution of a new party in place of the original party, the substituted party becomes responsible for all costs, and the original party is discharged.” 59 Mo. 283. But this decision is based upon the fact of substitution, which was not done here.