46 Mo. App. 275 | Mo. Ct. App. | 1891
This is an unlawful detainer suit, brought by plaintiff to recover from the defendant possession of eighty acres of land in Barton county, Missouri, and damages for withholding the same. The suit was instituted before a justice of the peace, and taken by writ of certiorari to the circuit court. The complaint that was filed with the justice, and which was duly sworn to, alleged that plaintiff was damaged in the sum of $50. After the jury was selected and sworn (in the circuit court) to try the case, the plaintiff asked leave to amend her complaint by interlineation, by adding the words “one hundred and,” just before-the word “fifty” in the ad damnum averment of the complaint, so- that the allegation as to damages would be $150, instead of $50. The defendant objected to the-amendment, but the court granted the request, and the complaint was so amended, defendant saving his exceptions. After the amendment the complaint was not sworn to. A trial was then had which resulted in a finding for the plaintiff, the damages being assessed at $84. The defendant then filed a motion for a new trial, and,, pending the action on said motion, plaintiff again asked leave to amend, this time by striking out the words “one hundred and,” that had before, by leave of the court, been interlined over the objection of the-defendant; and, also, the word “fifty” just following-said words,' so that the complaint would then allege that the plaintiff was damaged in the sum of---dollars; the defendant objected to said amendment being made, but the court permitted the same, which was then done, defendant saving his exceptions. After
The single question presented by the record in this case for our decision is, as to the propriety of the action of the circuit court in permitting the two amendments by the plaintiff of her complaint. Amendments are favored, and should be liberally made in furtherance of justice. When a cause is appealed from a justice of the peace to the circuit court it is tried there on its merits, and the only prohibition against making amendment is that the cause of action shall not be changed. House v. Duncan, 50 Mo. 453.
There was no impropriety in allowing the amendment, changing the amount in the ad damnum averment in the . complaint from $50 to $150. Elliott v. Abell, 39 Mo. App. 346. After the verdict of the jury was returned, and before judgment had been rendered, it was still within the power of the court to allow any amendment of the complaint which would make it conform to the proof adduced. McClannahan v. Smith, 76 Mo. 428. There was no sort of occasion requiring the plaintiff to ask leave to make a second amendment of her complaint. However, by striking out of her complaint the amount of damages she had claimed, she still had left all the essentials necessary to entitle her to recover both the premises and the damages assessed by the jury. The damages assessed were not in excess of the amount named in the ad damnum averment after its first amendment, which we have stated was not improper.
Under section 2423, of the statutes, in respect to the action of forcible or unlawful entry and detainer, it is not necessary, in the complaint, to allege a specific claim for damages. Moore v. Dixon, 50 Mo. 424; Feedler v. Schroeder, 59 Mo. 364. The complaint, as last amended, stood as if no amount of damages were
It was the constant practice under the practice act of 1855, which required the verification of-every petition, answer or replication to make any of the amendments authorized by sections 3, 6, 7, 8, 11 and 14, of article 4, chapter 128, Revised Statutes, 1855, 1252, without a second verification, and we see no reason why a different practice should obtain under the statute in relation to forcible entry and detainer. . Amendments like the one in question are allowed by the court on application of the complainant, and the complaint, after such amendment, is to be taken as if it had been originally framed as it appears in its amended form. No reason is discovered why the trial court may not allow an amendment of a complaint to be made by interlineation. No injury could result to the adverse party by this practice.
We can perceive no ground upon which we are authorized to sustain the defendant’s appeal. The judgment must be affirmed.
