Fields v. Maloney

Ray, J.

It appears by the record that two distinct suits between the parties were originally commenced in the circuit court of Sullivan county, where, by order of court, they were afterwards consolidated. After the consolidation, the plaintiff’, by leave of court, filed an amended petition, the object and purpose of which was the partition of *173 a certain tract of land, situated in Sullivan county, among the parties to this consolidated action; and, also, to compel defendants to account to plaintiff for his share of the rents and profits, and the use and occupation of the same. After that, this cause of action, in said consolidated suit, by order of the Sullivan circuit court, was transferred to the circuit court of Livingston county, by change of venue, in due form. After the cause reached the Livingston circuit court, the plaintiff', by leave of court, filed a second amended petition, in the nature of an action of ejectment, to recover from defe:, dant the possession of his undivided interest in the same tract of land, situated as aforesaid, in Sullivan county, together with the monthly value of the rents and profits, and damages for the detention of the same, in the ordinary way. To this second amended petition the defendants filed answers ; first, in the nature of a general denial, and secondly, setting up the ten year statute of limitation. A trial was had upon this second amended petition, in the Livingston circuit court, which resulted in a finding and judgment for the plaintiff', from which the defendants, after unsuccessful motions for new trial and in arrest, appealed to this court.

The controlling question is, whether the Livingston circuit court had or acquired jurisdiction of the subject matter of the cause of action set out in the second amended petition.

The action thus stated, it will be seen, is ejectment. The subject matter a tract of land, situated, not in Livingston, but in Sullivan county. Section 3483, Bevision of 1879, provides that: “ Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situated.” It is clear, therefore, that the Livingston circuit court had no original jurisdiction over the subject matter of the cause of action in said second amended petition. It is contended, however, that it acquired jurisdiction by reason of the proceedings originally *174 commenced in the Sullivan circuit court, and regularly transferred to the Livingston circuit court by change of venue, as aforesaid.

It may be conceded that the transfer from the Sullivan to the Livingston circuit court was regular, in this case. It may be also conceded that, after the transfer, the cause may be prosecuted to final judgment, as if-no change of venue had occurred, and that any amendment permissible in the former is allowable in the latter. But, in neither court, can a ^plaintiff so amend as to state an entirely new cause of action. The rule is, that the previous pleading must show that the cause of action presented in the new pleading is the same as that upon which the action was originally based. The eourfs are always liberal in allowing amendments, so long as the original cause of action is not changed thereby. This position is abundantly supported by the following authorities: Bliss on Code Plead., § 429; Lottman v. Barnett, 62 Mo. 159; Gibbons v. Steamboat Fanny Barker, 40 Mo. 253; Milliken v. Whitehouse, 49 Me. 527; Cooper v. Waldron, 50 Me. 80; Sumner v. Brown, 34 Vt. 194; Steffy v. Carpenter, 37 Pa. St. 41; Snead v. McCoull, 12 How. 407, and Walden v. Bodley, 14 Pet. 156.

It may likewise be conceded that all amendments, that are germane to the original proceeding, and all pleadings, the purpose of which is to substitute another cause of action, of which the court has jurisdiction, are matters of exception, to be saved by bill; but where the new petition filed under the guise of amendment, sets forth a different cause of action, of which the court has no jurisdiction, and that fact appears upon the face of the new. petition, the action of the court in .permitting it to be filed, and rendering judgment upon it is a matter of error, and may be reviewed here, without saving any exceptions. Bateson v. Clark, 37 Mo. 34. And it may be further conceded, that if the cause of action contained in the second amended petition, is the same, though modified, as that set out in the ¿first amended petition, then the Livingston circuit court *175 retained all tlie jurisdiction of the subject matter it originally acquired, by reason of the change of venue from Sullivan to Livingston, and for the purpose of the cause of action so transferred, held it as effectually as the Sullivan court originally possessed it.

The solution of the question, therefore, depends largely upon the fair construction of these two amendments, but more especially upon the effect of the second amended petition. If it can justly be held that the cause of action set out in the second amended petition, is the same as that contained in the first, then the Livingston circuit court had jurisdiction. But if it should be held that it substituted therefor an entirely new and distinct cause of action, (of which we think there can be no question,) over the subject matter of which the Livingston circuit court had no jurisdiction, then its judgment is void.

That an action for the partition of a given tract of land, by one joint tenant against the others, (and also to compel them to account for rents and profits, or use and occupation,) is not the same as an ordinary action of ejectment, by one of said tenants against the others, for the recovery of his undivided interest therein, (including the monthly value of the rents and profits, damages, etc.,) we think too plain for argument.. That the Livingston circuit court had no original jurisdiction of an action of ejectment for a tract of land situated in Sullivan county, is equally clear. R. S. 1879, § 3483. It follows, therefore, that the second amended petition in this case was the substitution of a new cause of action, and not an amendment of the original cause set out in the original amendment. It operated as an abandonment of the cause of action transferred from Sullivan to Livingston, and substituted in lieu' thereof a new cause of action, over the subject matter of which the Livingston circuit court had neither original nor acquired jurisdiction. In this case, the entire record, in point of fact, is before us, and we fail to see how rule 13 of this court — 74 Mo. Rep. at close of volume — can be of any avail to the plaintiff, *176 since, if the clerk had strictly complied with the rule, the want of jurisdiction over the subject matter would still have been manifest on the face of this second amended petition, and nothing to show a change of venue. As this want of jurisdiction appears on the record proper, no bill of exceptions is necessary to enable us to review it. Neither is it waived by appearance and answer; nor can it be conferred by consent or agreement of parties; but only by the law. It may also be taken advantage of at any stage of the proceeding, either in the lower court or that of last resort. These positions are fully sustained by the following authorities: R. S. 1879, § 3519; Freeman on Judg., §§ 118, 121; Brown v. Woody, 64 Mo. 547; Bray v. Marshall, 66 Mo. 122; Henderson v. Henderson, 55 Mo. 534; Stone v. Corbett, 20 Mo. 350; Dodson v. Scroggs, 47 Mo. 285.

For these reasons, the judgment of the circuit court is reversed and remanded.

All concur except Norton and Sherwood, JJ., who dissent.