House v. Duncan

50 Mo. 453

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

Opinion

Wagner, Judge,

delivered the opinion of the court.

The plaintiffs, in their firm name, brought suit on a promissory note before a justice of the peace against the defendant, and obtained a judgment thereon. Defendant then appealed to the Circui.t Court, and while the case was there pending he moved to dismiss the same on account of a defect in the names of the plaintiffs who were parties to the record, and because there was a nonjoinder of parties. Plaintiff then offered to amend by supplying the defect, but the court refused to permit the amendment to be made, and then sustained defendant’s motion and dismissed the suit.

We think the decision of the court was wrong. Amendments are favored and should be liberally made in furtherance of justice. When a cause is appealed from a justice of the peace to the Circuit Court, it is tried upon its merits, and the only prohibition against making amendments is that the cause of action shall not be changed. (Wagn. Stat. 850, § 19.) Now the rectifying the mistake in the name of a party, or bringing in a new party, in nowise changed the cause of action. That was the justness and validity of the note, and it remained the same. A contrary opinion was intimated in Kraft v. Hurtz, 11 Mo. 109, but we hardly think that was a correct interpretation of the statute. Whenever it is necessary to the determination of a controversy to have other parties, the court may order them to be brought in by amendment. (Wagn. Stat. 1034, § 4.) When it is a case originating in the Circuit Court, the fact can be accomplished by an amendment of the petition. If it is a-case originating before a justice of the peace, where no formal pleading is necessary, the amendment may be made when the case is removed to the .Circuit Court by simple motion.

Let the judgment be reversed and the cause remanded.

The other judges concur’.