Bick v. Dixon

• Decision Date: 31 May 1910
• Parties: J. J. BICK, Appellant, v. CHARLES H. DIXON, Respondent
• Court: Missouri Court of Appeals

129 S.W. 254

148 Mo.App. 703

J. J. BICK, Appellant, v. CHARLES H. DIXON, Respondent

Court of Appeals of Missouri, St. Louis

May 31, 1910

Appeal from Monroe Circuit Court.--Hon. David H. Eby, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Thomas P. Bashaw for appellant.

(1) The amended petition was not a departure. "There are two tests which determine whether a second petition is an amendment or new cause of action. First, whether the same evidence will support both petitions; and, second, whether the same measure of damages will apply to both. If these questions are answered in the affirmative it is an amendment if in the negative, it is a substitution." Liese v Meyer, 143 Mo. 547; Burnham v. Tillery, 85 Mo.App. 453; Grigsby v. Barton County, 169 Mo. 221; Boecker v. Milling Company, 101 Mo.App. 136. (2) The original petition was a suit on a judgment and defendant brought in on a summons. The amended petition declares on the same judgment. The same proof is required to support both and the dropping of unnecessary words from the prayer of the amended petition makes no change in the cause of action. (3) The rule as to amendments or changes in the prayers to petitions is liberal. Thus, in an action for a breach of contract of marriage, aggravated by seduction, changing prayer for relief in the petition from one for damages caused by the seduction to one for damages for breach of contract to marry, is an amendment and not a change of the cause of action." Liese v. Meyer, 143 Mo. 547; see also Howard v. Shirley, 75 Mo.App. 150.

OPINION

GOODE, J.

--This appeal was taken from a judgment on a motion to strike out an amended petition, which motion was sustained on the ground the amendment substituted a new cause of action. Plaintiff having elected to stand on the amended petition, judgment was rendered against him, dismissing his action and for costs.

The first petition alleged plaintiff had obtained judgment before a justice of the peace May 22, 1897, for $ 84.30, against defendant, with eight per cent interest to compound annually, and for costs; that a transcript of said judgment was filed in the office of the clerk of the circuit court July 3, 1900, which judgment, damages, interest and costs never had been paid, vacated, appealed from or satisfied, and the same was due, owing and unpaid and aggregated $ 175; "for which plaintiff asks revival renewal, lien thereof to be continued and prays for final judgment at eight per cent interest to compound annually and for costs of suit." Defendant was brought into court by service of summons and answered by general denial and plea of the five-years Statute of Limitations. Afterwards he filed an amended petition which differed in no material respect from the original one, except in the form of the prayer, and this will be recited: "For which amount plaintiff asks and prays for judgment against defendant, with eight per cent interest to compound annually, and for costs of suit." On motion of defendant the amended petition was struck out for seeking judgment on the justice's judgment; whereas the first petition had sought to revive the justice's judgment. Generally speaking the prayer for relief does not control the form of relief to be granted, and any consistent with the facts alleged may be awarded. [Kneale v. Price, 21 Mo.App. 295; State ex rel. v. Lumber Co., 180 Mo. 53, 79 S.W. 454.] Nor is it conclusive on the question whether an amended petition...