19 Mo. App. 338 | Mo. Ct. App. | 1885
delivered the opinion of the court.
In a former proceeding, the plaintiff sued the defendant, Finck, before a justice of the peace, on an open account, amounting to $186.81, and containing among its items the same causes of action upon which the present suit is founded. The justice rendered judgment in favor of the plaintiff for fifty-two dollars, from which the defendant appealed to the circuit court. In the circuit court, the plaintiff, by leave, struck out from his account the several items which constitute the basis of the present suit. Afterwards, the defendant dismissed his appeal, and paid the plaintiff the amount due upon the judgment of the justice.
In the present suit, which Was begun in the circuit
The learned judge of the circuit court filed an ably written opinion which is copied into the record. He holds that where an appellant dismisses his appeal in the circuit court, after the appellee in that court, and' by leave thereof, has amended Ms cause of action by withdrawing certain separate claims therein, such dismissal has the same effect as though the justice’s judgment, thus affirmed, had been rendered upon the demand so-amended ; that our statute requiring a trial de nono in the circuit court, in effect, vacates the judgment before the justice; that when the plaintiff, within proper limits, amends his claim in the circuit court, the effect is the same as if the amendment had been allowed before the judgment of the justice. It follows that the defendant’s dismissal of his appeal subjects the justice’s judgment to all the conditions superimposed by the steps taken in the circuit court; so that it must be regarded as rendered upon the cause of action which remained, after the plaintiff had stricken out a part of Ms claim. Consequently, as to that part, there was no res judicata in the present case.
We do not find this reasoning satisfactory. It is to-us incomprehensible how the justice’s judgment, rendered upon a certain cause of action can, by subsequent proceedings anywhere, be transformed into a judgment upon a different cause of action. The justice’s judgment is not vacated by the appeal. If it were so, it would remain a nullity, notwithstanding a dismissal of the appeal. Execution is suspended, the judgment meanwhile remaining otherwise unaffected, until replaced by some
It seems to be supposed that, if the plaintiff here may not sue again on the items stricken out from his account, he will be deprived of a positive right which he had acquired by the striking out; and it should not be permitted for the defendant thus to despoil him by dismissing the appeal. This is all a mistake. He acquired no positive right. His only right, if any, was contingent on the absence of the eliminated items from a final ad
The trial and judgment before the justice included the same cause of action here sued upon, and so made-the plea of res judicata a valid defence. We think it is perfectly clear that the plaintiff’s withdrawal of this causé of action in the circuit court, where there was no-adjudication on the merits, constituted no sufficient answer to the plea. The defendants’ demurrer, therefore, should have been sustained. The rulings of the court in giving and refusing instructions were conformable with its views on the demurrer, and were in like manner erroneous.
The judgment must be reversed and the cause remanded.