Keene v. Sappington

90 S.W. 752, 115 Mo. App. 33, 1905 Mo. App. LEXIS 375

• Court: Missouri Court of Appeals
• Decided: December 4, 1905
• Status: Published

Opinion

BROADDUS, P. J.

— The plaintiff brought his suit in a justice’s court on the following account: .

“J. L. Sappington, Dr.

To John W. Keene...................205.00

Int. on same from Jan. 22,1904, to March

22,1904 .......... .............. 2.05

Total amount due..............207.05”

The defendant appealed to the circuit court where plaintiff was finally allowed to amend his statement. The amended statement was as follows:

“Columbia, Missouri,

“J. L. Sappington in account with John W. Keene, Dr. To one jack........................$205.00

Int. on same from January 22, 1904, to March 22,1904 ............... 2.05

Total amount due.............$207.05”

The amendment consisted in stating that the debt due was for one jack and prefixing a dollar mark to each item of the account, and the sum total. The defendant moved to strike out the amendment because the original statement filed before the justice did not state a cause of action and was therefore not the subject of amendment on appeal in the circuit court. This motion was overruled, and the defendant declining to further plead or answer, stood on his said motion. Judgment was rendered for plaintiff, and defendant appealed.

The only question before us is, Was the original statement filed before the justice sufficient to give him jurisdiction of the case? The defendant lays great stress upon the ruling in Brashears v. Strock, 46 Mo. 221. But the decision in that case was made under the statute as it then stood, which was as follows: “The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court under appeal.” The court held that, although the statute did not forbid an amendment, the statement in question “was about as near no statement as could be made.” But since said decision, the statute in question has been amended. Section 4079, Revised Statutes 1899, allows any amendment to a cause of action filed before a justice embraced or intended to be included in the original account or statement so filed. The original statement here filed is somewhat defective, but there, is no pretense that the amendment does not contain what was intended to be included originally. In Maxwell v. Quimby, 90 Mo. App. 469, the account which the court permitted to be amended on appeal was about as good as this one. This court held that the circuit court committed no error in permitting the amendment. [Dowdy v. Wamble, 110 Mo. l. c. 284, and cases cited.] That the amendment was proper is clear. Affirmed.

All concur.