Webb v. Robertson

74 Mo. 380

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

Norton, J.

John V. Webb, plaintiff’s intestate, filecL before a justice of the peace in Lafayette county the following statement :

John V. Webb, Plaintiff, v. James Robertson, Defendant.

Before Justice of the Peace.

State of Missouri, County of Lafayette,

ss.

Personally appeared before me, John J. Hall, a justice ■of the peace within and for the township of Middleton, in the county aforesaid, William Manville Webb, as agent for plaintiff in the above entitled suit, and upon oath says that the plaintiff has a just demand against the defendant, and that the amount which the affiant believes said plaintiff ought to recover, after' allowing all just credits and set-offs, is $85.00 due; and that-has good reason to believe .and does believe that the defendant is removing now his wheat ci’op from the premises of plaintiff and that he believes, unless an attachment be issued, he will lose his rent.

W. M. Webb.

Sworn to and subscribed before me this 17th day of July, 1878.

John J. Hall,

J ustice of the Peace.

On the trial before the justice plaintiff had judgment for $85, from which the defendant appealed to the circuit ■ court, and in said court filed a motion to dismiss the suit ■on the ground that plaintiff had not filed any statement of his cause of action with the justice of the peace. This motion was sustained, and the suit dismissed, from which plaintiff has appealed, and assigns the said action of the court as error. ' On the hearing of said motion the transcript of the justice was read in evideuee, from which it '.appeared that, on the 1st day of August, 1878, the day on which the writs of attachment and summons were returnable, the parties appeared, and defendant filed his plea of abatement to the attachment, which, upon being tried, resulted in a judgment for plaintiff, and that the cause was the:i set down for hearing on the merits on the 12th day ■of August, 1878, on which said day the parties appeared •and by consent the same was continued to the 19th day of August, 1878, at defendant’s costs, on which said day the parties appeared and the cause was continued at plaintiff’s -costs till the 22nd day of August, on which day the parties again appeared, and being ready for trial, the cause was submitted to a jury on request of defendant, which, after hearing the evidence, was discharged because of their failure to agree on a verdict, and the further hearing of the same was set for the 26th day of August, at which time the parties again appeared, and on defendant’s motion and affidavit, a change of venue was awarded to another justice -of the peace, who set the same for hearing on the 30th -day of August, 1878, at which time the parties appeared ■and on defendant’s motion the cause was continued to September 16th, 1878, at which time the parties appeared by .attorney, and the cause was continued on plaintiff’s motion to the 23rd day of September, 1878, at which time the parties again appeared, and it was agreed that the cause should be continued to the 30th day of September, 1878, at which time the parties appeared, and being ready for trial, submitted the cause to the justice, who, after hearing the evidence, rendered judgment for plaintiff' for $85.

After the introduction of the above evidence, and before the said motion to dismiss was determined, plaintiff offered to file an amended statement, as follows : “ James Robertson, to John Y. Webb, Dr. To rent of twenty-one and one-fourth acres of land off' of the south end of the east half of the southeast quarter of section 23, township 51, range 24, situated in Middleton township, Lafayette county, Missouri. Said rent commenced in August, 1877, and ended immediately after harvest, to-wit: On or about the 15th day of July, 1878, at and for the sum of $4 per acre, amounting to the sum of $85.00.” _

While it may be conceded that the statement filed before the justice was imperfect, and was not in strict compliance with the directions of the statute, in view of the fact which appeared from the affidavit filed by plaintiff,, that the sum claimed, $85, was within the jurisdiction of the justice, and that the sum so claimed was on account of rent, and the fact that after the trial of defendant’s plea in abatement, he repeatedly appeared to the merits of the-action, and in view of the fact that under the law at the-time the tidal was had it was defendant’s right to have the justice require the plaintiff to make a brief verbal statement of his cause of action, and in view of the rule laid, down in the case of Sublett v. Noland, 5 Mo. 519, where it is. said: “ But admitting that this instrument is such a one-as is contemplated by the statute, and ought to have been filed on the issuing of the summons; I understand the statute requiring the instrument to be filed to be merely directory. The act was passed for the benefit of the defendant to apprise him of the nature of the claim set up by plaintiff'; and this advantage and benefit, thus secured to defendant, may be waived by his own acts. Had the defendant availed himself of the technical advantage in time, the case might have stood differently. The case,, however, came up into the circuit court, which court is by law directed to try the same anew without regarding any error, defect or other imperfection before the justice.’’ From the above view of the case we might well conclude,, and do so conclude, either that defendant waived any more formal statement than was made, or that he had been sufficiently informed as to the cause of action by the brief verbal statement which the statute then authorized to be required of plaintiff. Our opinion, therefore, is, that the court erred in sustaining the motion to dismiss the suit,, and should have allowed the amended statement to be filed, and proceeded with the trial, as the amended statement did not state a new cause of action, but only perfected an imperfect statement which had already been filed before the-justice. There was sufficient to amend by. Judgment reversed and cause remanded,

in which all concur.