17 Mo. App. 429 | Mo. Ct. App. | 1885
Opinion by
This action was instituted in a justice’s court by the plaintiff, L. P. Thieman, and was based on the following-statement filed with the justice:
“Concordia, Mo., Pec. 1st, 1881.
“Mr. George G. Goodnight,
Dr. to Louis P. Thieman,.
October 1st, 2nd, 3rd, 1881, to arresting Edward Easley, alias Sam. White, a fugitive from justice, twenty-five dollars ($25).”
On trial before the justice there was a verdict and judgment for defendant, from which the plaintiff duly prosecuted his appeal to the circuit court. In the circuit court the plaintiff was permitted, against the objection of the defendant, to file an amended statement by adding the-name of Uriah Parrell and William B. Taggart as co-plaintiffs. This amended statement then proceeded as-follows :
“Plaintiffs for amended petition state that during the-year 1881 a certain horse, the property of defendant, was. stolen. That defendant afterwards offered and promised, to pay to any one the sum of twenty-five dollars for the-arrest or capture of the thief, person or persons, that stole said horse. That afterwards, in consideration of said offer and promise, on of about October 1st, 1882 [1881]. plaintiff captured, arrested and" detained one Edward. Easley, alias Sam. White, as and who was the thief and person who stole said horse, and the person for whose arrest and capture plaintiff [defendant ?] offered to pay the said sum of twenty-five dollars. Plaintiffs state they have demanded of defendant payment of the said sum ; that-it had been refused. Wherefore plaintiffs ask judgment, for the said sum with interest and costs.”
The cause was then tried before the court without the-intervention of a jury. The court found the issue for the-plaintiff and rendered judgment accordingly for the-
I. Several questions are presented by this record which have been extensively argued by counsel, but there lies at the very threshold of the controversy one question, which, if determined adversely to the respondents, will conclude this case, without passing on the others. This question is, the right of plaintiff, Thieman,' to amend his cause of action in the circuit court by adding the names of the other plaintiffs as parties.
Section 3058 of Revised Statutes declares that: “The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court upon the appeal.” (
There is little room for doubt that the statute, as understood by the profession and interpreted by the courts prior to the revision of 1879, did not recognize the right of amendment on appeal by substituting or adding new parties, as was done in this case. It is true that Wagner, J., in Howe v. Duncan (50 Mo. 453), seemed to think that it was permissible on appeal from a justice’s court: “Wheneveritmaybe necessary to the determination of a controversy to have other parties, the court may order them brought in by amendment. ” But in the later case of Beattie v. Hill (60 Mo. 75), the same learned judge pronounced said enunciation in House v. Duncan, as a mere obiter dictum, “which upon mature consideration” he did not deem “ sustainable upon a correct construction of the statute. ” In this latter view we contour; and it must control this decision, unless some later legislative enactment has altered the law in this respect. Counsel for respondents contend that section 3060, incorporated for the first time in the revision of 1879, authorized the amendment. Said section is as follows: “In all cases of appeal the bill of items of the account sued on — or the statement of plaintiff’s cause of action — maybe amended upon appeal in the appellate court, to-supply any deficiency or omission therein, when by such amendment substantial justice will be promoted, but no new item or
The well understood purpose of this amendment of the statute gives little countenance to the construction contended for by respondents. As it is an innovation upon or enlargement of the former rule of practice, its operation is not to be extended beyond its obvious import.
It is observable from the phraseology that it is only ‘ ‘ the statement of the plaintiff’s cause of action” which “may be amended upon appeal in the circuit court.” It is not any other person’s cause of action. And further, the amendment authorized is only “to supply any deficiency or omission therein ’ ’ that is, in the original statement. It is not to make a new cause of action, but to perfect one imperfectly stated in the justice’s court.
There is not one word about adding new parties and bringing them in by amendment. It was not intended that where A sues in a justice’s court on a contract alleged to have been made between him and the defendant, he might on appeal amend by adding the name of B and C and allege a contract made with them by defendant. The qualifications immediately following the right of amendment shows that the section was not designed to give any such extended right of amendment.. “But no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment.” What was the cause of action sued on in the justice’s court? In effect it was this: That the defendant had hitherto made a written proposal to pay the sum of $25.00 to any one who should accept it and make the arrest of the person named. The plaintiff,' in his statement, said in effect, I accepted that proposition and performed the service. That constituted a contract between the parties, proposed by the one party, accepted and executed by the other, which entitled the plaintiff to sue for and recover the entire reward. That issue he tried in the justice’s court, and lost, and from aught that appears here, he failed to maintain his cause of action
Then what becomes of the provision contained in said section 3058, that the same cause of action, and no other, that was tried in the justice’s court shall be tried in the circuit court? This section is in entire harmony with ■section 3060, because the latter expressly so limits the •character of the amendment that it shall not change the cause of action. If the cause of action as stated in the •amended statement be true the plaintiff could not maintain the action on which he sued in the justice’s court. The undertaking of the plaintiffs was a joint contract and jointly executed by them. It could not be halved nor subdivided. It was a unit and indivisible. The plaintiffs could not split the cause of action into three parts, and each one sue for his supposed interest or share. It was one single reward offered, and the defendant could not be sued by more than one party therefor, nor be subject to more than one judgment.
“A contract with several persons, for the payment to them of a sum of money, is a joint contract with all, and •all the payees have therein a joint interest, so that no one can sue alone for his proportion.” — Par., Con. 7 ed. 13; Rainey v. Smizer, 28 Mo. 310; Bliss Pl., sect. 63. The proof that would sustain the first cause of action would not maintain the second. — Scoville v. Glasner, 79 Mo. 449. Sections 3567 and 3568, Revised Statutes, have no application to this case. Those provisions were in the practice act before 1879, and were not supposed by the Supreme Court to apply to appeals from justices’ courts. On the contrary those provisions goverMng practice in causes originating in the circuit courts, indicate
It follows,
that the judgment of the circuit court must be reversed and the cause remanded for further proceeding in conformity with this opinion.
