Chambers v. Lane

5 Mo. 289

• Court: Supreme Court of Missouri
• Decided: June 15, 1838
• Status: Published

Opinion

Tompkins, Judge,

delivered the opinion of the court.

Lane sued Chambers in the circuit court by petition in debt under the statute, and had judgment. To reverse that judgment, this writ of error is sued out.

By the act under which this suit was commenced, the plaintiff is required to insert m the petition a copy of the instrument sued upon. The instiument sued on in case, reads thus: “One day offer date 1 promise,” &c. In the copy inserted in the petition, the word uaf-was twice copied, and that copy read thus: “One a.1ier after date I promise,” &c. After the pleadings m the cause were made up, and before trial, the plaintiff was allowed, on motion, to amend the copy. The de-fencjant movec[ f01- a continuance of the cause on account , , . . , , . oi the amendment allowed, and his motion was ovorru-lod, and judgment being rendered against him, he moved ^01' a new tr'a4and drat moti°a was overruled, and these decisions of the court are assigned for error. The amendment permitted by the court could not possibly have produced any surprise. The legal effect of the in-strumenf was precisely the same as before the copy was amended by striking out one of the words “offer,” which had been twice written by mistake. The circuit court, then, in my opinion, committed no error, either in refusing the defendant a continuance or in refusing him a new trial; and such being the opinion of the rest of the court, the judgment of the circuit court is affirmed.