40 Mo. App. 589 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This suit was instituted before a justice of the peace in Perry county upon the following statement filed as the plaintiff’s cause of action.
“B. F. Clements, Agent for Goodspeed Publishing Company, plaintiff, against “ J. T. Grreenwell, defendant.
“ Plaintiff states that defendant, by his contract in writing, herewith filed, promised and agreed to pay to
“Attorney for plaintiff.”
Judgment was rendered in favor of defendant by the justice, and the plaintiff took an appeal to the circuit court. In the circuit court C. L. Goodspeed and W. A. Goodspeed, composing the firm and doing business under the ñame. of the Goodspeed Publishing Company, filed their application for a change of venue of the cause from Perry county to some other county, on the ground that the citizens of Perry county were prejudiced against them, and the circuit judge changed the venue to Bollinger county. In the circuit court of Bollinger county the defendant moved to strike the cause from the docket on the ground that the change of venue had been improvidently granted, for the reason that the circuit court cannot change the venue of a cause coming to it by appeal from a justice of the peace, and on the further ground that the change of venue was granted, not on the application of the plaintiff, but on application of C. L. Goodspeed and W. A. Good-speed, who were strangers to the record.
Before this motion was determined, C. L. Good-speed and W. A. Goodspeed moved the court to amend the statement, by striking out the name of B. P. Clements as plaintiff, and inserting their names in lieu thereof. The court overruled their motion, sustained the defendant’s motion to strike the case from the docket, and then rendered judgment- against the plaintiff and his sureties on the recognizance for costs.
Concluding, as we must on this state of the record, that the judgment is erroneous, and must be reversed, we proceed to examine the other questions presented, which necessarily must be disposed of after the cause is remanded. The first of these questions is, whether the venue was properly changed to the Bollinger county circuit court. The defendant claims that the change of venue was illegal for two reasons, first, because the cause having originated before a justice, the venue thereof could not be legally changed to another county, and, next, because W. A. and C. L. Groodspeed, not being parties to the suit, the. venue could not be changed on their application.
The first of these propositions is very fully and elaborately argued by counsel, and must be answered by the construction placed upon the statute, as the right to change the venue is purely statutory. Lewin v. Dille, 17 Mo. 64; Huthsing v. Maus, 36 Mo. 101. The statute of 1879, section 3729, provides that “a change of venue may be awarded in any civil suit to any court of record.” The defendant contends that the words, “to any court of record,” limit the right to a change of venue to causes where the suit is originally brought in a court of record, and excludes such right in cases where the suit is brought to the circuit court by appeal.
The cases cited by the defendant are not in point. In Powell v. Sutro, 80 Cal. 559, the application was made in the superior court after answer filed, and it was held it came too late, as the statute required it tó be made before answer; and that is all that that case decides. In Hoshall v. Hoffacker, 11 Md. 362, the question depended on the construction of the constitution, and statutes enacted following its language, which were seemingly restrictive of the right of removal. The case was an appeal from the decision of county commissioners in a road case, and the court denied the right of removal while the case was pending on appeal. LeGband, C. J., doubted the propriety of the decision of the court, and merely concurred in order to settle the law. In Mississippi the statute expressly confines the right of removal to cases originating in the circuit court, hence the case of Yalabusha County v. Carbry, 11 Miss. (3 S. & M.) 529, can have no application. On
The application for a change of venue in this case was not supported by the affidavit of a party to the action, and might have been properly refused on that ground. Norvell v. Porter, 62 Mo. 312; In the Matter of Whitson's Estate, 89 Mo. 58. But as decided in State v. Dodson, 72 Mo. 283, and in Squires v. Chillicothe, 89 Mo. 226, that objection ought to have been made in the court granting the change of venue, and not in the court to which the cause was removed. Hence, we must conclude that on that branch of the case the law is also with the plaintiff, and that the circuit court of Bollinger county should have retained jurisdiction of the case after the papers were transferred to that court, even though the application made for a change of venue was informal.
This brings us to the main question in the case, and that is, whether the statement filed before the justice could be amended in the circuit court in the manner in which it was sought to be amended.' The answer to this question must be determined by the fact, whether B. F. Clements was in point of fact the sole plaintiff in the action instituted before the justice of the peace. If so, the amendment could not be made, because the utmost liberality, which prevails in regard to amendments on appeal of statements filed before justices of the peace, does not go to the extent of permitting a
It is apparent from the foregoing that the circuit court committed no error in refusing an amendment, which contemplated an entire substitution of new parties plaintiff in lieu of the only party plaintiff in the case, in the absence of any showing that the justice’s docket entries were erroneous, and that the cause of action really tried before the justice was that of W. A. Goodspeed and C. L. Goodspeed, plaintiffs, against the defendant. In view of the great liberality, which is now permitted on the subject of such amendments under the provisions of section 3060 of the Revised Statutes of 1879, we are not prepared to say that the court should not, in furtherance of justice, upon a clear showing that the cause of action tried before the justice was one by the firm against the defendants, permit an amendment of the plaintiff ’ s cause of action in conformity with the facts, but we do say that, in absence of such showing, the ruling of the court on that branch of the case was correct.
Reversed and remanded.