67 Mo. App. 255 | Mo. Ct. App. | 1896
This action was brought in a justice’s court, to recover of the railway company $15, for killing one brood sow, and also a “reasonable attorney’s fee.” The railway company suffered a default. The justice rendered judgment against it for $15 and costs and $25 attorney’s fee, from which judgment an appeal was duly perfected to the Camden county circuit court. In the circuit court, the plaintiff filed an amended petition. After the amended petition was filed, the appellee made a motion to affirm, and this was granted without hearing any evidence. An attorney’s fee was prayed for in both petitions, original and amended. The justice allowed $25, and this part of the judgment was also affirmed by the circuit court. The case comes into this court by writ of error.
The present liberal statute on amendments of actions in circuit courts, on appeal from justices of the peace, section 6347, does not permit an amendment which changes the cause of action. The statute, section 6345, in terms declares: “The same cause of action and no other, that was tried before the justice, shall be tried before the appellate court upon the appeal.” The effect of section 6347 is, that amendments may be made in the circuit court, stating properly the same cause of action which was intended to be stated before the justice. The cause of action tried before the justice must be tried before the circuit court. The circuit .court has no authority to permit any different cause of action to be stated by amendment, or to be tried.
Since the same cause of action (and no other) which was tried before the justice of the peace, shall be tried on appeal, and since amendments can only be made which state the same cause of .action which was intended to be stated before the justice, it follows that the statement before the justice must show what was intended to be stated, else it can not be known whether the amendment is confined to the same cause of action. And so we have held that the defective statement before the justice must show the cause of action intended to be stated. Gregory v. Railroad Co., 20 Mo. App. 448; Sturges v. Botts, 24 Mo. App. 282. It is familiar to
"Whether in a ease where the statement fails to show what cause of action was intended, the circuit court could receive evidence of what cause was tried before the justice, we need not decide. See Nutter v. Huston, 42 Mo. App. 363. Or whether the full record of the justice could be considered with the statement, in ascertaining the intention.
In this case, the legal effect of what plaintiff stated in his statement before the justice was to make a common law action, with a superfluous allegation or prayer, for an attorney’s fee. The first question, then, on an offer to amend, is, what cause of action did he intend to state? In considering the intention, which may be gathered from the statement, we should consider the causes of action, which he had for the killing of his animal. He had a common law action, an action for double damages under section 2611 of the statute, an action for single damages, with attorney’s fee, under
We have already seen that the effect of the statement was to state a good cause of action at common law, and it not appearing that there was an intention to state any other cause of action, we must assume such action as the one intended to be stated. Having, therefore, stated a cause of action which amounts to an action at common law and it not appearing any other kind of action was intended, it was error in the court to permit it to be amended for the purpose of stating some other cause.
But, under the peculiar facts of this amended statement, no harm has resulted, from the fact that the amendment, judged from the record including the amendment, itself, does not change the cause of action from one at common law. Taking only a portion of the amended statement, it might be said that it showed an intention to state a cause of action under either section 2611, or section 2612. But, looking at the entire matter, we see this could not be. It could not have been intended to be for double damages under section 2611, for double damages are nowhere asked, either in the statement, or by motion, nor is any judgment asked or rendered for such damages; and it asks an attorney’s fee, which is not allowed by that section. And it could not have been intended to be under section 2612, for it alleges and shows that the animal was killed in a collision by being run over by the engine; whereas, that section provides for a case only, as before shown, where the injury happens, without collision, by the animal being frightened into a fence, culvert, etc. And so, also, it is apparent that the amendment does not make a case under section 4428 aforesaid. The amend
The judgment for plaintiff was erroneous in so far' as it included an attorney’s fee of $25. If, therefore, the plaintiff will remit that sum within' fifteen days, the judgment will affirmed; otherwise, it will be reversed and the cause remanded.