39 Mo. 498 | Mo. | 1867
delivered the opinion of the court.
This suit was commenced before a justice of the peace in the county of Worth, upon an account filed with the justice charging the defendant with sis fat hogs at sixteen dollars each and one shoat at four dollars, crediting him with the amount of one hog and one shoat, twenty dollars, and claiming a balance of eighty dollars as for goods sold and delivered. There was a trial before the justice, and the plaintiff had judgment for seventy dollars and costs. An appeal was taken by the defendant to the Circuit Court of Worth county; and upon the trial there, the evidence offered tending to show that the plaintiff fiad lost certain hogs which had come into the possession of the defendant, the plaintiff, upon leave granted, filed an amended statement of her cause of action, in writing, alleging that the defendant, on or about the 15th day of October, 1864, wrongfully took five hogs, the property of the plaintiff, of the value of fifty dollars, 'and had not returned or accounted for the same, and asked judgment for fifty dollars damages. The defendant excepted to the amendment, and the plaintiff recovered a verdict for sixty-three dollars, on which a remittitur of thirteen dollars was entered, and had judgment for fifty dollars, from which an appeal is taken to this court.
The statute is express that upon an appeal from a justice of the peace to the Circuit Court, the case must be tried de novo upon the same cause of action that was tried before the justice. Here the cause of action is wholly changed, and the amendment was made for the very reason that the evidence which would support the one would not support the
The judgment must be reversed and the cause remanded.
