Doggett v. Blanke, 70 Mo. App. 499

Doggett v. Blanke

70 Mo. App. 499 | Mo. Ct. App. | 1897

Bland, P. J.

Suit begun before a justice of the peace upon the following statement of account:

“J. A. Blanks, Dr. to Mrs. Grace M. Doggett.

To amount assumed and promised to pay:

Policy No. 325,265................................$ 10.50

Policy No. 3,651 ................................. 10.50

Policy No. 8,700................................. 14.00

Policy No. 6,002................:................. 17.50

Water License...................................... 10.00 $62.50.”

Judgment before the justice was recovered by the ■plaintiff, from which defendant appealed to the circuit court, where upon a trial de novo he recovered judgment, from which the plaintiff Doggett duly appealed to this court.

JUpTéIcHng.c°urt:

*502 Tlstetemln°of:

*503All concur.

*501The respondent contends here that the account filed before the justice fails to state any cause of action. The statute, section 6138, Revised Statutes of 1889, does not require any formal pleadings before a justice of the peace by either party, but it does require that a statement of the account, or the facts constituting the cause of action, *502shall be filed before any process shall issue in any suit not founded upon a written instrument, filed with the justice as the foundation of the suit. It has been uniformly held by this and the supreme court, that a statement of a cause of action, or account filed before a justice of the peace, should be sufficiently definite to advise the opposite party with what he is charged and to bar another action. Dahlgreen v. Yocum, 44 Mo. App. 277; Leas v. Pacific Express Co., 45 Mo. App. 598; Bauer v. Barnett, 46 Mo. App. 654; Haynes v. Wabash R’y Co., 54 Mo. App. 582; Wilkinson v. Metropolitan Ins. Co., 54 Mo. App. 661; Inhabitants of the Town of Butler v. Robinson, 75 Mo. 195. The account filed in this case fails to come up to these requirements, but there is sufficient stated to admit of amendment under section 6347, Revised Statutes 1889, and as this case must be sent back for retrial, plaintiff should be permitted to amend her account, if she is so advised. Heman v. Fanning, 33 Mo. App. 50; Lustig v. Cohen, 44 Mo. App. 271; Lamb v. Burk, 49 Mo. App. 337; Butts v. Phelps, 79 Mo. 302; Dawdy v. Wamble, 110 Mo. 280. On the trial the defendant’s counsel in his opening statement, over the objections of the plaintiff, was permitted to state to the jury matters of offset, when no offset had been filed or pleaded, and to state to the jury circumstances tending to show that plaintiff was actuated by malice in the institution of her suit. And on the trial defendant’s counsel over the objection of plaintiff’s counsel was permitted to introduce evidence tending to prove an off-set or counter? claim in defendant’s favor. • From the history of the case-as furnished by the transcript, the trial court seems to have lost sight of the issues involved, by the insistence and persistence of respondent’s • counsel to prove an unpleaded off-set. The instruction given for the *503respondent in effect told the jury that a sale of a dwelling house carried with it the sale of all unexpired insurance policies against loss by fire, on the house. Such is not the law. Judgment reversed and cause remanded.