Burden v. Hornsby

50 Mo. 238

• Court: Supreme Court of Missouri
• Decided: July 15, 1872
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

Suit was brought originally before a justice of the peace for killing plaintiff’s dog, and the damages were laid at $100. On motion to dismiss for excess of claim, the plaintiff amended his statement so as to make his claim but $50, and went to trial. This leave to amend is the first error complained of, but it was perfectly proper to make the correction. The defendant appealed, and upon trial the verdict was in his favor. The court, however, on the plaintiff’s motion, granted a new trial, and this is also claimed to be erroneous. It has long since been settled in Missouri that error will not lie for granting a new trial. The reasons are set forth in Helm v. Bassett, 9 Mo. 52, and the doctrine is affirmed in Keating v. Bradford, 25 Mo. 86. Upon the second trial the evidence was all submitted to the jury upon fair instructions, and the case should have stopped there. I find no error whatever in the record.

Judgment affirmed.

The other judges concur.