Home Mutual Insurance v. Bauman

14 Mo. 74

• Court: Supreme Court of Missouri
• Decided: March 15, 1851
• Status: Published

Opinion

Ryland, J.

delivered the opinion of the court.

This was a petition under the act concerning practice in courts of justice. The object was to set aside an adjustment of a loss by fire on a policy of insurance, and to vacate an order for $4200, given upon the adjustment. An injunction was granted restraining the negotiation ol the or 'e?’, &c.

The detVndant answered.

A motion was made by the defendant to dissolve the injunction. The court below sustained the motion, and assessed the damages without a jury, although one was demanded by the petitioner below. The couri then dismissed the petition, although the plaintifF demanded a trial bj jury upon the merits. During the progress of the cause below, the plaintiff' moved the court for liberty to amend the petition — filing affidavit in support of the motion. This motion the court overruled.

In this case the plaintiff (or petitioner) was entitled to a trial on th« merits, and it was error for the coiut to refuse a jury on the trial of the merits., or on the assessment of damages after the dissolution of the injunction. The new act concerning practice expressly provides for s jury trial in such cases. We think the court might have allowed the amendment to the petition as prayed for; the statute contemplate! such amendments, and the court should be liberal in granting such when tí e ends of justice are promoted thereby.

The object of the petition wa« not fully attained by the mere orde enjoinmg or restraining, but it was to have the adjustment set aside am to aseen tain the true amount of the loss for which the order for $420i was given. This involves the merits of the whole controversy between the parties in regard to the loss, the adjustment, and the order thereon.

The plaintiff was entitled to have the case tried by a jury; and to have a jury to assess the damages, and for the refusal of the court to grant this to the plaintiff, the judgment below will be reversed and the cause remanded.