Bick v. Dixon

• Decision Date: 03 May 1910
• Citation: 129 S.W. 254,148 Mo. App. 703
• Parties: RICK v. DIXON
• Court: Missouri Court of Appeals

129 S.W. 254

148 Mo. App. 703

RICK v. DIXON

St. Louis Court of Appeals. Missouri.

May 3, 1910.

1. PLEADING (§ 248)—JUDGMENT (§ 252)— PRAYER FOR RELIEF.

Generally speaking the prayer for relief does not control the form of relief to be granted, but any relief consistent with the facts alleged can be granted; nor is it conclusive that an amended petition changes the cause of action first stated that it closes with a prayer materially different from the prayer of the original petition if the pleadings are otherwise alike.

2. JUDGMENT (§ 252)—RELIEF.

The prayer of the petition will determine the character of the proceeding and the relief that may be accorded, and to grant relief not prayed for and not contemplated by plaintiff would surprise defendant and deprive him of some right of procedure to which he is entitled.

3. JUDGMENT (§ 870)—REVIVAL—PROCEDURE —SCIRE FACIAS.

Scire facias is the only mode of reviving a judgment.

4. PLEADING (§ 248)—ACTION ON JUDGMENT —AMENDMENT.

Where the original petition in an action on a justice's judgment did not pray for a writ of scire facias, but merely asked for the revival of the judgment, an ordinary summons only being issued, the case stood as an action on the judgment, and there was no inconsistency in an amended petition, the only change in which was the omission of the words appropriate in a prayer to revive a judgment by scire facias, and hence there was no change of cause of action.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by J. J. Bick against Charles H. Dixon. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See, also, 126 S. W. 235.

T. P. Bashaw, for appellant. Chas. H. Dixon, for respondent.

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 entered 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 8 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 were 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-year statute of limitations. Afterwards he filed an amended petition which...