140 Mo. App. 595 | Mo. Ct. App. | 1909
This is a suit on a judgment. There were two amended petitions filed. On defendant’s motion, the second amended petition wTas stricken from the files. From this action of the court, plaintiff having excepted and preserved his exceptions by bill duly filed, prosecuted this appeal. It appears the court regarded the cause of action stated in the second amended petition as a substitute for that theretofore relied upon, and on this theory, sustained defendant’s motion to strike it from the files.
The original petition is inartistically drawn. The fact is, it is exceedingly informal. It - was possibly drafted by plantiff without the aid of counsel, and it contains much irrelevant and immaterial matter. However, enough appears to show that it was intended as a suit upon a justice of the peace court judgment, dated January 22, 1894, for the amount of which plaintiff prayed judgment, together with interest and costs of suit. There are recitals in the original petition also to the effect that plaintiff asks the revival and renewal of the lien on his judgment. However, these matters may be treated as surplusage, for it appears what plaintiff really prayed for was a judgment against the defendant upon his judgment debt thereinbefore recited. There was no writ of scire facias issued nor served upon
Plaintiff afterwards filed an amended petition, declaring upon the same identical judgment of January 22, 1894, rendered in his favor in the justice of the peace court of C. Gr. Baker, justice of the peace of Prairie township of Audrain county, Missouri, for $85 with ten per cent interest, to compound annually, with costs, and which recited, further, that a certified transcript of that judgment was filed in the circuit court of Audrain county, Missouri, February 19, 1903; and that after-wards, on March 2, 1903, a certified copy thereof from the Audrain county circuit court was filed in the office
Defendant having interposed an answer to the amended petition, plaintiff employed counsel who prepared and filed a second amended petition, which was stricken from the files. The second amended petition counts upon the identical judgment that is counted on in the first. It alleges that on the 22nd day of January, 1894, plaintiff obtained judgment against defendant before C. G. Baker, a justice of the peace, within the township of Prairie, in the county of Audrain, State of Missouri, for the sum of $85 with interest thereon from the date of such judgment, at the rate of ten per cent per annum, to be compounded annually, and for his costs in such case laid out and expended. It further alleges that such judgment had never been paid or satisfied; that it is still due and owing the plaintiff, and that there remains due and unpaid the plaintiff on such judgment, the amount of $250, for which he asks judgment and for his costs.
Now there can be no doubt that, while the original petition filed contained irrelevant matter which might have been stricken out as surplusage, it declared upon a judgment debt alleged to be due and owing to the plaintiff by the defendant. It identified the judgment by
The second amended petition which was stricken from the files was prepared after counsel came into the case and is a plain and concise statement of a cause of action on a judgment. The tests most frequently adverted to in this State by which the proposition as to whether a new pleading is an amendment, or a substitution of another and distinct cause of action, are, first, whether the same evidence will support the allegations of both the original and amended petition; and second, whether the same measure of damages will apply to the
However this may- be, from the arguments presented in the brief, it appears the second amended petition was stricken ■ from the files on the theory that it was a departure from or the substitution of a new cause of action for that relied upon in the first amended petition. And it is argued here on behalf of defendant that by filing the first amended petition, the original petition was thereby abandoned. It is argued a new cause of action was interposed as the first amended petition, after reciting judgment, was had on January 22, 1894, before C. G. Baker, justice of the peace of Prairie township in Audrain county for $85, etc., proceeds further and avers that a certified copy of such judgment was filed in the office of the circuit court of Audrain county, and that thereafter, a certified copy of that record was filed in the circuit court of Monroe county; and thereafter, some proceedings were had, or attempted to be had, looking to its revival in the court of W. R. Martin, justice of the peace of Monroe county, etc. The argument is the averment of these matters changed or substituted a new cause of action; that is, substituted the judgment of W. R. Martin, justice of the peace of Monroe county, for that originally declared upon. We are not impressed with this argument in the least. In the first place, even this first amended petition, notwithstanding the confusion introduced, asks for judgment on the original judgment. Aside from this, all of those matters last above adverted to are entirely immaterial to the obligation which existed in favor of plaintiff on the judgment sued on; that is, on the original judgment of date January 22, 1894. In this proceeding on that judgment, it was entirely competent for the court to treat those matters as immaterial. [Bick v. Robbings, 131 Mo. App. 607.] However, the standard by which
It appearing that the second amended petition counted upon the identical cause of action sued upon in the original petition, the judgment will be reversed and the cause remanded with directions to the trial court to set aside its orders striking the second amended petition from the files and to reinstate the cause upon its docket for further proceedings therein.