100 Mo. App. 724 | Mo. Ct. App. | 1903
The suit was begun before a justice of the peace in the city of St. Louis to replevy one horse of the alleged value of $500, and $200 damages for its wrongful detention. On November 9, 1900, the justice dismissed the suit for the reason that the damages sued for exceeded his jurisdiction. On November 20, 1900, plaintiff filed its affidavit and bond for an appeal to the circuit court. Its bond was approved and the appeal was granted by the justice.
In the transcript sent up by the justice is an amended petition in which the claim for damages is omitted, but there are no file-marks on the paper nor is there any entry in the justice’s docket showing that permission was given to plaintiff to amend the petition or that an amended petition was filed. After the cause reached the circuit court, plaintiff filed an amended petition omitting the item of damages.
Defendants moved to dismiss the cause for want of jurisdiction in the circuit court over the subject-matter of the suit. This motion was overruled. The defendants then filed .separate answers. After filing answers defendants filed what they call a supplementary motion to dismiss the suit for want of jurisdiction in the circuit court over the subject-matter of the action. The court sustained this motion and dismissed the cause at plaintiff’s cost. A timely motion to set aside the order dismissing the cause and for new trial proving of no avail, plaintiff appealed to this -court.
Plaintiff concedes that the amount of damages sued for in the original complaint exceeded the jurisdiction of the justice, but contends that it filed with the justice an amended complaint that brought the entire subject-matter of the suit within the justice’s jurisdiction. A statement purporting to be an amended complaint (which would bring the case within the justice’s jurisdiction) was attached to the transcript and sent up to the circuit court by the justice. Section 3937, Eevised Statutes 1899, authorized the justice, on motion of the plaintiff, to make the amendment. He was not required to enter in his docket the fact, that leave had been granted to amend or that the amendment had been made (E. S. 1899, sec. 3844). The only evidence that an amendment was allowed is the filing by the justice of the amended paper. The so-called amended complaint had no file-marks. Had the amendment been allowed the justice would have committed error in dismissing the suit for want of jurisdiction of the subject-matter. We are, therefore, bound to conclude that the amendment was not allowed by the justice, since to hold otherwise would be to put the justice in error and to find that he allowed the amendment, when there is no evidence that he did so.
In Hernán v. Fanning, 33 Mo. App. 50; it was substantially decided that if the amendment could have been made, had the suit been brought in the circuit court, it might be made on appeal from the justice’s court.
In Dowdy v. Wamble, supra, an amendment was allowed after the appeal to show a jurisdictional fact. The same thing was allowed in ah attachment suit in Daniel v. Atkins, 66 Mo. App. 432. A like ruling was made in Kincaid v. Griffith, 64 Mo. App. l. c., 676.
The only prohibition against amendments of complaints after appeal, seems to be that no new or different cause of action shall be substituted.
The jurisdiction of the circuit court of a cause appealed from a justice, is derivative. If the justice had no jurisdiction of the subject-matter of the suit, the circuit court can acquire none by the appeal. Osborne v. Schutt, 67 Mo. 712; Rankin v. Fairley, 29 Mo. App. 587; McCann v. Sawyer, 59 Mo. App. 480.
But it is contended by appellant that on appeal of any suit of any class over which justices are given jurisdiction, an amendment may be made in the circuit court to cure an omission of a jurisdictional fact. We think this is correct. But appellant’s counsel seems to have an erroneous conception of what the courts mean by the word “class,” when discussing this question. His contention is that the word embraces every case, regardless of the sum demanded, if the justice
The judgment is affirmed.