33 Mo. App. 50 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action was commenced before a justice of the, peace on the following statement of cause of action:
“St. Louis, Mo., Sept. 22, 1887. James Fanning, to William Heman, Hr., 1,950 yards grading, at 3c, $58.50 ; damages in delay, $191.50; $250.00.”
In the circuit court a motion to dismiss the bill, because of the insufficiency of the statement and misjoinder of causes of action therein, was made and overruled. The plaintiff was thereupon allowed to file an amended statement of cause of action which recited “ that defendant, on or about the twenty-second day of April, A. D., 1887, made and entered into an oral contract with the plaintiff, whereby he agreed with the
• The only question for decision on this appeal is the ruling of the trial court in allowing this amendment to be filed. We think there was no error in this ruling. We concede that the original statement was not sufficient, even under the very liberal rulings in this state in favor of upholding informalities of statement in actions commenced before justices of the peace. But the statute { R. S. sec. 3060) allows a plaintiff to' amend his statement in the circuit court after an appeal from the justice, “when, by such amendment, substantial justice will be promoted ;” but with the proviso that ‘ ‘ no new cause of action, not embraced or intended to be included in the original account or statement, shall be added by such amendment.” The argument of the appellant is that, if the statement as it originally stood was no statement at all, its infirmity could not be
The other objection to the allowance of the amendment is that, if a cause of action can be gathered from the original statement, the amendment introduces a new or different cause of action, which is prohibited by the statute. The statute, it is perceived, is very broad ; it lets in the amendment by inference in every case where the item or cause of action introduced by the amended statement was intended to be embraced in the original account or statement. We cannot say, on a comparison of the original with the amended statement, as a matter of interpretation, that the amended statement introduces a cause of action which an unprofessional pleader may not have intended to introduce in the original statement. On the whole, it appears to be a case where the circuit court has found that “substantial justice” would be promoted by the amendment. We cannot see what
The case of Brashears v. Strode, 46 Mo. 221, and some other cases to which we have been cited, are not in point, because they were decided before the enacting of the statute (R. S. sec. 3060 ) allowing amendments in appeals from justices, which appeared for the first time in the revision of 1879. It should also be observed that no question is made as to the impropriety of allowing such an amendment without terms. A defendant is of course entitled, even in an action commenced before a justice of the peace, to be apprized in some form of what he is called upon to answer; and if he is obliged to go to trial before the justice without being so apprized, and a judgment is rendered against him, and he appeals to the circuit court, it may be well that the discretion of the circuit court, in allowing the plaintiff to amend his statement so as to accomplish the object of the statute, is not soundly exercised, unless terms are imposed, such as the payment of costs which- accrued before the justice. But as no < such question is made, we need not make,any further observations upon it. It is enough to say that this amendment was within the policy of the statute.
The judgment will be affirmed. It is so ordered.