McOmber v. Balow

Supreme Court of Minnesota

McOmber v. Balow

42 N.W. 83, 40 Minn. 388, 1889 Minn. LEXIS 103

CourtSupreme Court of Minnesota

DecidedApril 23, 1889

StatusPublished

Cited by5 cases

This text of 42 N.W. 83 (McOmber v. Balow) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McOmber v. Balow, 42 N.W. 83, 40 Minn. 388, 1889 Minn. LEXIS 103 (Mich. 1889).

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Opinion

Vanderburgh, J.

In cases of appeal from justice’s court upon law and fact, the trial proceeds de novo, as if the action had been originally brought in the district court. In this case the action is upon contract, and the amount claimed to be due thereon in the justice’s court was $99. Upon the new trial in the district court, upon an appeal by the defendant, the plaintiff was allowed to amend his complaint so as to claim damages in the sum of $160. The only question presented by the bill of exceptions upon this appeal is whether the district court had jurisdiction to allow such an amendment. This question can hardly be considered an open one in this state. See Bingham v. Stewart, 14 Minn. 153, (214.) The district court had concurrent jurisdiction with the justice’s court of the cause of action in this case, and, when the case came into that court by appeal, it stood, as to all subsequent proceedings, as if originally brought there; and the power of the court to allow amendments of the character complained of is undoubtedly the same as if the action had originally [389]*389been commenced therein. The action of the court in such cases could only be questioned in case of an abuse of discretion. The same rule prevails elsewhere under similar statutes. Dressler v. Davis, 12 Wis. 58; Palmer v. Wylie, 19 John. 276; Jackson v. Covert, 5 Wend. 139.

Order affirmed.

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Vanderburgh, J.

In cases of appeal from justice’s court upon law and fact, the trial proceeds de novo, as if the action had been originally brought in the district court. In this case the action is upon contract, and the amount claimed to be due thereon in the justice’s court was $99. Upon the new trial in the district court, upon an appeal by the defendant, the plaintiff was allowed to amend his complaint so as to claim damages in the sum of $160. The only question presented by the bill of exceptions upon this appeal is whether the district court had jurisdiction to allow such an amendment. This question can hardly be considered an open one in this state. See Bingham v. Stewart, 14 Minn. 153, (214.) The district court had concurrent jurisdiction with the justice’s court of the cause of action in this case, and, when the case came into that court by appeal, it stood, as to all subsequent proceedings, as if originally brought there; and the power of the court to allow amendments of the character complained of is undoubtedly the same as if the action had originally [389]*389been commenced therein. The action of the court in such cases could only be questioned in case of an abuse of discretion. The same rule prevails elsewhere under similar statutes. Dressler v. Davis, 12 Wis. 58; Palmer v. Wylie, 19 John. 276; Jackson v. Covert, 5 Wend. 139.

Order affirmed.

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Bluebook (online)

42 N.W. 83, 40 Minn. 388, 1889 Minn. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcomber-v-balow-minn-1889.

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