Holt County v. Cannon

• Decision Date: 13 March 1893
• Citation: 114 Mo. 514,21 S.W. 851
• Parties: HOLT COUNTY v. CANNON et al.
• Court: Missouri Supreme Court

21 S.W. 851

114 Mo. 514

HOLT COUNTY v. CANNON et al.

Supreme Court of Missouri, Division No. 1.

March 13, 1893.

AMENDMENT OF PLEADING — MOTION TO STRIKE OUT — WAIVER OF OBJECTIONS — REVIVAL OF JUDGMENT.

1. Where the only difference between an original and an amended petition is in the relief sought, the facts stated in each being the same, a motion to strike out the amended petition on the ground that it stated a different cause of action was properly refused.

2. Where, after the overruling of a motion to strike out an amended petition on the ground that it stated a different cause of action, defendant answers over to the merits, the error, if any, is waived.

3. Where, in a proceeding to revive a judgment, it appeared that the judgment was rendered by a court having jurisdiction of the subject-matter and the parties in an action in which defendants had been summoned and made answer, that it was a final judgment, and that no appeal from it had been taken, or writ of error sued out, the court's refusal to find for defendants on the ground that the judgment was void because the petition on which it was based did not state facts sufficient to constitute a cause of action, was proper.

Appeal from circuit court, Holt county; C. A. Anthony, Judge.

Proceedings by Holt county against William S. Cannon and another to revive a judgment rendered for plaintiff in an action against defendants. From a judgment for plaintiff, defendants appeal. Affirmed.

L. R. Knowles, for appellants. John Kennish and T. C. Dungan, for respondent.

BRACE, J.

This cause is certified here from the Kansas City court of appeals under the constitutional amendment, for the reason that "a county is a party." It appears from the record that on the 21st of August, 1875, the plaintiff obtained judgment in the circuit court of Holt county against the defendants for $625.54. That afterwards, in a proper proceeding in said circuit court, said judgment was, on the 13th day of January, 1879, duly revived, and afterwards, on the 12th day of September, 1882, was again duly revived in said court. At the August term, 1888, a petition was filed in said court in behalf of the county by the prosecuting attorney setting forth the foregoing facts, and that no part of said judgment had been paid, and praying that said judgment be again revived. To this petition the defendants demurred, and their demurrer was sustained. The plaintiff, by leave of court, filed an amended petition, setting up substantially the same facts, and praying for judgment for the amount of said original judgment and interest. The defendants thereupon filed their motion to strike out the amended petition, for the reason that it set up a new and different cause of action from that stated in the original petition. The court overruled the motion, and the defendants thereupon filed their answer to the amended petition, in which the...