Bick v. Dixon

148 Mo. App. 703 | Mo. Ct. App. | 1910

GOODE, J.

This appeal was taken from a judgment on a motion to strike out an amended petition, which motion was sustained on the ground the amendment substituted a new cause of action. Plaintiff having elected to stand on the amended petition, judgment was rendered against him, dismissing his action and for costs.

The first petition alleged plaintiff had obtained judgment before a justice of the peace May 22, 1897,- for $84.30, against defendant, with eight per cent interest to compound annually, and for costs; that a transcript of said judgment was filed in the office of the clerk of the circuit court July 3, 1900, which judgment, damages, interest and costs never had been paid, vacated, appealed from or satisfied, and the same was due, owing and unpaid and aggregated $175; “for which plaintiff asks revival, renewal, lien thereof to be continued and prays for final judgment at eight per cent interest to compound annually and for costs of suit.” Defendant was brought into court by service of summons and answered by general denial and plea of the five-years Statute of Limitations. Afterwards he filed an amended petition which differed in no material respect from the original one, except in the form of the prayer, and this will be recited: “For which amount plaintiff asks and prays for judgment against defendant, with eight per cent interest to compound annually, and for costs of suit.” On motion of defendant the amended petition was struck out for seeking judgment on the justice’s judgment; whereas the first petition had sought to revive the justice’s judgment. Generally speaking the prayer for relief does not control the form of relief to be granted, and any consistent with the facts alleged may be awarded. [Kneale v. Price, 21 Mo. App. 295; State ex rel. v. Lumber Co., 180 Mo. 53, 79 S. W. 454.] Nor is it conclusive on the question whether an amended petition changes the cause of action first stated that it closed with a prayer materially different from the prayer of the original petition, if the two pleadings are otherwise alike. [Liese v. Meyer, 143 Mo. 547, 45 S. W. 282.] It' has been held the prayer may sometimes determine the character of the proceeding and the relief that may be accorded; and we understand the Supreme Court to mean this is so when the petition states facts consistent with the prayer for relief, which is specific, and to grant relief not prayed for and plainly not contemplated hy the plaintiff in stating Ms case, would surprise the defendant and deprive him of some right of procedure he is entitled to; as, where the entire theory of the case was for relief in equity and that relief was prayed, though relief at law might he consistent with the facts alleged, it will not he given. [Rush v. Brown, 101 Mo. 586, 45 S. W. 735.] The prayer of the first petition in this case contained words suggestive of a proceeding to revive the justice’s judgment, and also words suggestive of a suit upon said judgment; that is to say, it asked for revival of the judgment and continuance of its lien, and at the same time prayed judgment for the amount of the justice’s judgment at the time the suit was filed. It will he observed the first petition did not pray for the writ of scire facias, which is the only mode of reviving a judgment. [Armstrong v. Crooks, 83 Mo. App. 141; Holt v. Mansfield, Id. 191.] Instead of a scire facias being issued, an ordinary summons was issued, and, in point of fact, the case stood as an action on the justice’s judgment. The only change in the amended petition worth noticing was the omission of the words appropriate in a prayer to revive a judgment by scire facias. Inasmuch as the first petition stated facts to warrant a judgment by the circuit court for the amount of the justice’s judgment, and that relief was prayed, we think the amendment to cure the inconsistency of the prayer did not change the cause of action, but was proper, and as no scire facias was asked or issued so as to give the proceeding the effect of one to revive the justice’s judgment, perhaps the words of the prayer which looked to that relief might have been disregarded as surplusage. [McGlothlin v. Henry, 44 Mo. 250.] Therefore the judgment will be reversed and the cause remanded.

All concur.