63 Mo. 187 | Mo. | 1876
delivered the opinion of the court.
This was a proceeding originating in the probate court of Jackson county, on a demand in favor of the plaintiff, against the decedent’s estate, which was expressed to be for two and fourteen hundredths acres of land at $250 per acre, with interest thereon. In the probate court the demand was allowed, and judgment was rendered in favor of plaintiff. The administratrix then appealed to the circuit court, where a trial anew was had, and plaintiff again had judgment, from which an appeal was taken to this court.
In the circuit court the statement of the demand was amended, showing that the amount claimed was for money overpaid in the sale of land, there being a deficit of two and fourteen hundredths acres at the price of $250 per acre. To the filing of this amended statement the defendant objected, but the court overruled the objection, and the action of the court in this regard constitutes the main controversy.
In reference to appeals from the probate to the circuit court, the statute says : “Upon the filing of such trans'cript and papers in the office of the clerk of the circuit court, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the court having probate jurisdiction. (Wagn. Stat. 120, § 8.)
The statute in regard to appeals from justices’ courts provides that the same cause of action, and no other, that was tried before the justice, shall be tried in the appellate court, upon the appeal. And under this provision it has been held that the plaintiff may amend his statement in the appellate court, but he cannot change his cause of action. The same proceedings are had upon an appeal from the county court as upon an appeal from a justice of the peace. The cause is heard, tried and determined anew, and as there are no pleadings in either of the courts, errors, defects
It seems that the controversy grew out of an exchange of property. The decedent sold his property to the plaintiff, estimating that it contained seventeen acres, at the price of two hundred and fifty dollars per acre, but there was an agreement that if there was more than seventeen acres then plaintiff was to pay him at the rate agreed upon for the excess, and if there was a deficiency then he was to refund to the plaintiff the proper proportion. Upon a survey being made, it was found that there was a deficiency of two and fourteen hundredths acres, and it was for this that the amount was claiffied.
It is insisted that the proof of this agreement was inadmissible, because it was secondary evidence. The evidence was clear and explicit, and by the agent, a brother of the decedent, who conducted the negotiations between the parties. There was a writing of the agreement testified to by him, placed in the hands of a young unmarried man, and this young man had been dead for several years. What became of the written agreement in his possession was not known. He had his office with the decedent, and upon these facts the court admitted the evidence, and we are not prepared to say that such error was committed as would justify a reversal.
We think that the judgment should be affirmed, and it will be so ordered ;