32 Mo. App. 615 | Mo. Ct. App. | 1888
— The defendant was declared to be insane by jihe probate court of Knox county, and the plaintiff was duly appointed his guardian. Afterward, in the same court, the defendant was declared sane and of sound mind, and the plaintiff was ordered to make a final settlement, and turn over the surplus in his hands to his ward. The plaintiff accordingly presented his final settlement, which, after an examination by the defendant and his attorney, and by the court, was duly approved, and plaintiff was discharged as guardian. The settlement showed a balance due the plaintiff of $145.14 for moneys paid out by him for his ward. After the final settlement, the authorities in charge of the asylum in which the defendant was during his insanity sent to plaintiff an account for $12.47 for keeping and clothing his former ward while in the asylum. This account the plaintiff paid. The original petition in this case was in two counts. The first count was based on the final settlement as a judgment, and was for the recovery of the
The question is, did the account filed with the justice of the peace and the sum claimed in the present suit make one entire cause of action? The cause of action based on the account and the -cause of action stated in this case are separate and distinct causes of action. The fact that they may be said to have grown out of the same transaction, viz., the guardianship of the plaintiff, in no wise tends to show that the two demands constituted a single cause of action. The statute recognizes that various causes of action may originate out of the same transaction by providing that all such causes of action may be united in the same petition. The cause of action stated in this case is based upon a settlement between plaintiff and defendant and a promise by the latter to pay the amount thus found to be due to the former; the cause of action stated in the suit before the justice of the peace was based upon the payment by the plaintiff after the said settlement of moneys for the use of the defendant. These two causes of action were as distinct as if they had grown out of separate transactions, and although they could have been united in the same petition, they could not have been properly united in the same count of the petition. The payment of the sum after the settlement was in no way connected with the settlement, and hence could not have been recovered in" a lump with the amount of the settlement. The defendant also complains of the court’s refusal of the following instruction: “The jury are
Judgment affirmed.