Dean v. Trax

67 Mo. App. 517 | Mo. Ct. App. | 1896

Ellison, J.

This is an action of' unlawful detainer in which plaintiff recovered judgment.

The case was taken to the circuit court' where the complaint was amended over the objection of defendant. The complaint as filed before the justice was amply sufficient to give the justice jurisdiction. The defect cured by the amendment was not fatal at all, and comprised merely a more specific statement of the acts of defendant. We have held that where the complaint was not sufficient to clothe the justice with jurisdiction it could not be amended on appeal, since there was no provision, sufficiently comprehensive, in the forcible entry statute for such amendment. It has been held that the provision now found in the statute (section 6347), amendatory of the old law, is of sufficient breadth to permit an amendment in the circuit court to cover a jurisdictional defect in ordinary actions originating before justices of the peace. But that section does not apply to action of forcible entry and detainer. Johnson v. Fischer, 56 Mo. App. 552.

We have furthermore held that where in actions of forcible entry, the matter of defect was not jurisdictional, it might be amended in the circuit court. We think there is authority for this in section 5159, Revised Statutes, 1889, of the forcible entry act, reading as follows:

“Sec. 5159. Trial in circuit court to proceed de novo. When a cause shall be removed into the circuit court, by certiorari, or appeal, such court shall proceed to hear, try, and determine the same anew, as if it had originated in such court, without regarding any error, defect, or informality in the proceedings of the justice. (R. S. 1879, sec. 2491).” And so we decided in Tegler v. Mitchell, 46 Mo. App. 349. And so such amendments have been upheld in other cases of forcible entry and detainer. It was allowed as to amount of damages. Hison v. Selders, 46 Mo. App. 275; Elliott v. Able, 39 Mo. App. 346. And so as to the matter of description of property, Roberts v. Lynch, 15 Mo. App. 456.

It seems that the affidavit was made before the clerk of the court and that he omitted to attach the seal of the court. No objection was made to this in the trial court and it not being a fatal objection, we will not notice it here.

The instruction given by the court fully covers the law applicable to the case including the points made in defendant’s two refused instructions. An examination of the whole record has satisfied us that we can not interfere with the judgment and it is accordingly affirmed.

All concur.