104 Mo. 658 | Mo. | 1891
— This cause has been before this court heretofore, and is reported in 93 Mo. 530. The cause of action as originally stated, it seems, was changed in the third amended petition, the sufficiency of which was passed upon by this, court. On the return of this cause to the lower court, plaintiff filed a fourth amended petition, which on motion of the defendant was stricken out, on the ground that it contained an entirely different cause of action from that stated in the original petition.
This ruling of the trial court was obviously incorrect, because the defendant had pleaded the general issue to the third, amended petition, which contained allegations similar to those contained in the fourth amended petition. Having gone to trial on the amended petition it was quite too late for the defendant to raise the question that the fourth amended petition had changed the cause of action from what it was in the original petition. The case of Fields v. Maloney, 78 Mo. 172, has been cited by defendant’s counsel to sustain the action of the trial court. That case decides that, if a change of venue be taken in a partition cause to the circuit court of another county, and then the cause of action without objection be changed to one in ejectment, and a trial be had on such changed cause of action, the circuit court to which the change of venue
But that case is not law, and is contrary to everything written in the books, announcing, as it does, that though the court has jurisdiction of the “subject-matter of the action,” and though the parties submit themselves to that jurisdiction, yet that the whole proceedings are coram non judice. Besides, the dissenting opinion therein was expressly approved by this court in Stearns v. Railroad, 94 Mo., loc. cit. 322, and we again overrule that decision.
Judgment reversed and cause remanded.