Madkins v. Trice

65 Mo. 656

Opinion

Hough, J.

This was an action under the statute in relation to the claim and delivery of personal property, instituted before a justice of the peace. The affidavit of plaintiff omitted to state that the property claimed “had not been seized under any process, execution, or attachment against the property of the plaintiff'.” On appeal to the circuit court, the affidavit was amended and the omission supplied. Since the trial of this cause by the circuit court, it has been expressly decided by this court in the case of Gist v. Boring, 60 Mo. 487, that such an amendment cannot be made after appeal to the circuit court. The judgment, which was' for the plaintiff must therefore be reversed, and the suit be dismissed.

All concur except Judge Henry, not sitting.

Reversed.