Thompson v. Marshall

50 Mo. App. 145 | Mo. Ct. App. | 1892

Ellison, J.

— This action was instituted before a justice of the peace at the instance of a minor, and is for work and labor performed by the minor. He recovered before the justice and again in the circuit court. Defendant appeals.

In the circuit court there was a motion for change of venue filed at the second term of the circuit court after the appeal, alleging as ground therefor the prejudice of the circuit judge and the inhabitants of Gentry county. The court granted the change as to the first cause, and, refusing to proceed further, George W. Shoemaker, Esq., an attorney-at-law, was elected by the bar as special judge. The application for change of venue from Gentry county then coming on for hearing was overruled. In this there was no error. Passing by the question raised as to the sufficiency of the notice, the application itself is insufficient. It was made the second day of the second term of court on account of information coming to him “since the December term.” The application should have been made on the first day of the term. R. S. 1889, sec. 2260.

Defendant attacked the jurisdiction of the circuit court for the alleged reason that no account of plaintiff’s cause of action was filed with the justice. The account was lodged with the justice, and, though no filing was indorsed thereon, that fact will not affect the jurisdiction of the justice. On appeal this account was sent up with the papers. This was sufficient under the case of Olin v. Zigler, 46 Mo. App. 193. The case of Bar v. Blomberg, 37 Mo. App. 605, and other cases cited are not applicable.

Plaintiff, being a minor, could avoid his contract to receive a certain price for his labor and recover on a quantum meruit. Lowe v. Sinklear, 27 Mo. 308. Defendant’s third instruction was, therefore, properly refused.

The case amply shows plaintiff’s right to maintain this suit instead of his mother. Whatever presumption would exist as to the right of the mother is overcome by the direct testimony in the cause.

Other objections urged here are not well grounded. The case was well tried and resulted for the right party. The judgment is, therefore, affirmed.

All concur.