41 Mo. App. 573 | Mo. Ct. App. | 1890
Lead Opinion
This action of replevin originated before-a justice of the peace, where the plaintiff recovered a judgment. The defendants appealed to the circuit court, and on their motion the cause was dismissed on account of the insufficiency of the statement. Before the defendants’ motion to dismiss was passed on, the plaintiff asked leave to amend the statement, which the circuit court denied upon the ground that the statement failed to state a jurisdictional fact, and was, therefore, fatally defective. The plaintiff has appealed, and the correctness of this ruling is. the only question for our consideration.
The statement failed to allege that the property was detained by the defendant at the county of Stoddard. The italicized words were omitted. It is conceded by the plaintiff that the statement is defective, and not in conformity with the requirements of sections 2882 and 2883 of the Revised Statutes of 1879. It is also conceded that the averment, that the property was ’detained by the defendant,” was jurisdictional, but
Dissenting Opinion
(dissenting) — In this case the question for decision is, whether the circuit court erred in refusing to allow the plaintiff to amend a statement in an action of replevin, commenced before a justice of the peace, which statement was defective in this: That, while it alleged that the chattels were wrongfully detained from the plaintiff, it omitted to allege that they were thus detained from him by the defendant, as required by the statute. The observation of Judge Napton in Gist v. Loring, 60 Mo. 487, 489, where the statement, omitted two grounds prescribed by the statute, characterizing the amended petition as “substantially a new action,” should be regarded as merely the. reasoning of the judge who wrote- the opinion of the court, and not as furnishing authority for the conclusion that the amendment of a statement before a justice, in replevin, so as to supply a defect such as was omitted in the statement before us, is an amendment changing the cause of action. The slightest attention to the subject is sufficient to make it appear that it is not so. The action, with the amendment as before, is an action to recover the same chattel. The relief which is sought under the amendment is precisely the same which is sought before the amendment. The same evidence must be adduced in order to entitle the plaintiff to relief after the amendment, as before. So far from the amendment introducing a new cause of action, the petition in this case is defective in a respect, in which it
But the chief ground on which I rest my dissent from the conclusion of the majority of the court is that the Revised Statutes of 1879, section 3060, introduced a new rule on the subject of amendments in cases appealed from justices of the peace, under which it has been the constant and uniform practice of the supreme court and of this court to allow amendments of jurisdictional defects, which do not change the cause of action. That section is as follows : “In all cases of appeal the bill of items of the account sued on, or filed as a counter-claim or set-off, or the statement of the plaintiff’s cause of action, or of defendant’s counter-claim or set-off, or other ground of defense filed before the justice, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted ; but no new item or cause of action, not embraced or intended to be included in the original account or statement, shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs as the court may deem just and proper.” R. S. 1889, sec. 6347. Prior to the adoption of this statute, it was the rule that amendments could not be made in the circuit court in causes appealed from justices, for the purpose of supplying jurisdictional defects. On the contrary, the rule was, as it now is in the case where the record is removed by certiorari, to which this statute does not apply, that, unless the statement is so drawn as to show affirmatively that the justice of the peace had jurisdiction, the circuit court acquires no jurisdiction by the appeal, and the suit must be dismissed. McQuoid v. Lamb, 19 Mo. App. 153. An examination of the cases shows that the supreme court and this court have held that the statute extends to the amendment of jurisdictional defects in the statutory action before justices of the peace against railway companies for double damages for killing cattle, which have
The statute has, therefore, introduced a new rule applicable to all cases appealed from justices of the peace. We simply disobey the mandate of the statute when we attempt to revive the contrary rule in respect of actions of replevin, which was in force prior to this
My view is that, since the enactment of the statute, there are but two limitations upon the power of amendment possessed by the circuit court in civil cases appealed from justices of the peace. One is, where no statement was filed before the justice, or where the statement which was filed is so radically defective as to mean nothing, so that it is equivalent to no statement. In either of these cases there could be no amendment in the circuit court, because there is nothing to amend. Any amendment would be tantamount to commencing the action in the first instance in the circuit court, because it would be tantamount to filing a statement there for the first time, none having existed before; In such a case it could not be told what, if any, cause of action was prosecuted before the justice, and it could not be told whether the statement filed in the circuit court was or was not the same cause of action which was prosecuted before the justice. The other limitation on the power of amendment is where a statement has been filed before the j ustice which shows that a certain cause of action was litigated there, and where it is sought to amend the statement in the circuit court so as to allow a different cause of action to be litigated there. To illustrate what I mean: If the cause of action litigated before the justice as shown by the statement was an- action of replevin for a chattel, it could not be charged by amendment in the circuit court so as to make it merely an action on an account for the value of the hire or use of the chattel, while had or detained by the defendant. So, if the action, as shown by the statement before the justice, was brought to .recover an indebtedness arising on a particular contract, it could not be so changed by amendment in the circuit court as to make it an action to recover another indebtedness
My conclusion is that the decision of the majority of the court is contrary to the rulings of the supreme court in the following cases, and that the cause should hence be certified to the supreme court for final determination. Rowland v. Railroad, 73 Mo. 619; Schulte v. Railroad, 76 Mo. 324; King v. Railroad, 79 Mo. 328; Dryden v. Smith, 79 Mo. 525; Mitchell v. Railroad, 82 Mo. 106; Minter v. Railroad, 82 Mo. 128; Kitchen v. Railroad, 82 Mo. 686; Manz v. Railroad, 87 Mo. 278.