Beattie v. Hill
| Decision Date | 31 May 1875 |
| Citation | 60 Mo. 72 |
| Parties | ARMSTRONG BEATTIE and THOMAS B. WEAKLEY, Respondents, v. EGBERT O. HILL, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
B. F. Loan, for Appellant.
The cause tried before the justice was a demand, in plaintiffs' favor, against Hill and Weakley. In the Circuit Court it was amended so as to be in favor of Beattie & Weakley, against Hill as sole debtor. This was such a change in the cause of action as the law prohibits.
Allen H. Vories, for Respondents.
The amendment was proper. (House vs. Duncan, 50 Mo., 453.)
This was a suit brought before a justice of the peace on a promissory note, given by defendant Hill to Weakley, and by him assigned to plaintiffs. The note purported on its face to be for two hundred and twenty-five dollars. In the justice's court plaintiff had judgment, and Hill appealed to the Circuit Court.
The suit was brought in favor of Beattie & Co., against both Hill and Weakley, and the firm of Beattie & Co., consisted of Armstrong Beattie and Thomas B. Weakley, who was one of the defendants, and the indorser on the note, so that he was really plaintiff and defendant on the record.
In the Circuit Court the suit was dismissed as to Weakley, and an amendment was made, substituting the names of Armstrong Beattie and Thomas B. Weakley for Beattie & Co., as plaintiffs. To this amendment the defendant objected, but the court overruled the objection, and an exception was saved.
On the trial, the name of the firm and the parties composing it was proved to be in accordance with the amendment. The assignment was also proved, and the signature was admitted to be genuine.
Defendant then introduced evidence tending to show that he only got $150 from Weakley, and that he signed the note in blank, with authority for Weakley to file it up for $150 only; that he did not intend to borrow the money; that Weakley, at the date of the note, had money in his hands belonging to defendant; that the note was to stand and operate as a receipt when a settlement should be made between defendant and Weakley. Evidence was further introduced tending to show what amount was due defendant on settlement.
On the other hand plaintiff introduced evidence tending to show that defendant signed the note after it was filled up, and that he got the amount the note called for; that no money was due defendant from Weakley on a settlement; that the note in suit was a distinct transaction, and that after the note was given defendant had promised Beattie to pay it and asked for further time, so that he could get a settlement from Weakley in respect to their accounts. There was a verdict and judgment again for the plaintiff.
The first question that we will consider is, the action of the court in making the amendment in reference to parties on the record. The statutory provision is, 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. (Wagn. Stat., 850, § 18.) The rulings upon the construction of this section have not been entirely harmonious, and the cases cannot be all reconciled with each other.
In Clark vs. Smith (39 Mo., 498), there was an account filed with the justice, charging the defendant with certain hogs, and claiming a balance of $80 as for goods sold and delivered. There was a judgment for plaintiff, for $70 and costs. The case was appealed, and in the Circuit Court an amendment was made, alleging that defendant wrongfully took five hogs, the property of the plaintiff, of the value of fifty dollars, and had not accounted for the same, and asked judgment for fifty dollars damages.
This court held that the amendment was improper, and the cause of action changed. Judge Holmes, who wrote the opinion, said: “Here the cause of action is wholly changed. and the amendment was made for the very reason that the evidence which would support the one would not support the other.”
The same principle was affirmed in Hausberger vs. Pacific Railroad (43 Mo., 196). That was an action against the company for killing stock. The original statement filed with the magistrate was in the nature of a declaration at common law, and devolved on plaintiff the burden of proving negligence before he could maintain his action. In the Circuit Court an amendment was made to a complaint under the statute, by which negligence was made an inference or presumption of law, and the plaintiff was relieved of the necessity of proving it, and it was decided that the court committed error; that the cause of action was changed, and instead of a common law action it was turned into a statutory provision, clothed with new incidents, and requiring different proofs.
These cases seem to have been overlooked in Button vs. H. & St. Jo. R. R. (51 Mo., 153), where the complaint was for killing plaintiff's cow, and after an appeal taken, plaintiff was permitted to amend by stating that the killing was negligently done. The judge who delivered the opinion here, said that the cause of action after the amendment was essentially the same as before, but we are inclined to think differently. The case is certainly in conflict with Clark vs. Smith and Hausberger vs. Pacific R. R., and we are of the opinion that they were correctly decided.
House vs. Duncan, (50 Mo., 453) was where the plaintiffs, in their firm name, brought suit upon a promissory note before a justice of the peace. When the case was appealed plaintiff offered to amend by curing the defective statement of their names, and setting out their individual names in full. The court refused to permit this statement to be made, and we held that it was error. No new or different cause of action was proposed to be introduced. The controversy remained the same as it was originally, and the parties were the same, the only difference being that the statement cured a defect in the description of the parties. But there were some remarks made about bringing in new parties, which were not applicable to the...
To continue reading
Request your trial
-
Haney v. Thomson
...Railroad Co., 193 Mo. 453, 92 S.W. 83; Bowen v. Buckner, 171 Mo.App. 384, 157 S.W. 829; Hirsch v. Hirsch (Mo. App.), 273 S.W. 151; Beattie v. Hill, 60 Mo. 72; Rohrbough, Moore & Co. v. Reed Bros., 57 Mo. The last-mentioned case was an action on a written lease for rent commenced before a ju......
-
Gray v. Doe Run Lead Co.
...a comment on the evidence. Knott v. Boiler Works, 299 Mo. 613; Tyler v. Hall, 106 Mo. 323; Fleisch v. Ins. Co., 58 Mo.App. 607; Beattie v. Hill, 60 Mo. 77; Meux Haller, 179 Mo.App. 475. (5) An appellate court will not interfere with the award of damages unless the amount "is so glaringly un......
-
Gray v. Doe Run Lead Co.
...a comment on the evidence. Knott v. Boiler Works, 299 Mo. 613; Tyler v. Hall, 106 Mo. 323; Fleisch v. Ins. Co., 58 Mo. App. 607; Beattie v. Hill, 60 Mo. 77; Meux v. Haller, 179 Mo. App. 475. (5) An appellate court will not interfere with the award of damages unless the amount "is so glaring......
-
Mo., O. & G. Ry. Co. v. Collins
...to establish any of the issues, or the credibility of the witnesses testifying to said facts. ¶19 On the same question, in Beattie v. Hill, 60 Mo. 72, it was held that an instruction which told the jury that they might consider certain evidence as tending to prove a particular fact, but whi......