Kneale v. Price

Missouri Court of Appeals

Kneale v. Price

21 Mo. App. 295, 1886 Mo. App. LEXIS 174

CourtMissouri Court of Appeals

DecidedMarch 22, 1886

StatusPublished

Cited by5 cases

This text of 21 Mo. App. 295 (Kneale v. Price) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kneale v. Price, 21 Mo. App. 295, 1886 Mo. App. LEXIS 174 (Mo. Ct. App. 1886).

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Opinion

Ellison, J.

— It appears to be conceded that the petition in this cause did not state a cause of action under section 5661, Revised Statutes. It was drawn with a view to a cause of action under that section as clearly appears from the prayer. Notwithstanding such was the intention of the pleader the objection, for the reason there was no cause of action stated, should have been overruled, if a valid common law action appears from the body of the petition, and we think it does so appear. “ While the petition is not good as a pleading-framed on the statute, it nevertheless, in our opinion, sets forth a good cause of action at common law; and where such is the case the cause should be proceeded with. * * * If we treat the petition as embracing merely a common law cause of action, it was not demurrable because it asked for double damages. The character of the petition is not always determined by the relief it prays for. The court may grant any relief consistent with the case and embraced within the issues.” Comings v. Ry. Co., 48 Mo. 512.

The judgment will be reversed and the cause remanded.

Philips, P. J., concurs; Hall, J., absent.

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Ellison, J.

— It appears to be conceded that the petition in this cause did not state a cause of action under section 5661, Revised Statutes. It was drawn with a view to a cause of action under that section as clearly appears from the prayer. Notwithstanding such was the intention of the pleader the objection, for the reason there was no cause of action stated, should have been overruled, if a valid common law action appears from the body of the petition, and we think it does so appear. “ While the petition is not good as a pleading-framed on the statute, it nevertheless, in our opinion, sets forth a good cause of action at common law; and where such is the case the cause should be proceeded with. * * * If we treat the petition as embracing merely a common law cause of action, it was not demurrable because it asked for double damages. The character of the petition is not always determined by the relief it prays for. The court may grant any relief consistent with the case and embraced within the issues.” Comings v. Ry. Co., 48 Mo. 512.

The judgment will be reversed and the cause remanded.

Philips, P. J., concurs; Hall, J., absent.

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Bluebook (online)

21 Mo. App. 295, 1886 Mo. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kneale-v-price-moctapp-1886.

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