Bick v. Vaughn

Citation120 S.W. 618,140 Mo. App. 595
PartiesBICK v. VAUGHN.
Decision Date22 June 1909
CourtCourt of Appeal of Missouri (US)

A petition alleged that plaintiff on a designated date recovered judgment before a designated justice of the peace for a specified sum, that he subsequently filed a certified copy of the judgment in the circuit court and caused it to be recorded, that the judgment, interest, and costs were unpaid, that the judgment had not been appealed from, vacated, superseded, or satisfied, and that the same was due, and asked judgment against defendant for the amount due, and also for a revival of the lien of the judgment. An ordinary writ of summons was issued and served on defendant, who filed an answer to the petition as though it were a suit on the judgment. Held, that the petition must be interpreted under Rev. St. 1899, § 592 (Ann. St. 1906, p. 612), providing that plaintiff must make a concise statement of the facts constituting his cause of action, as stating a cause of action on the judgment, and not as a scire facias proceeding under section 3715 (page 2083).

3. PLEADING (§ 248)AMENDMENTS — NEW CAUSE OF ACTION.

Where the same evidence will support the original and amended petition, and where the same measure of damages will apply to the cause stated in the original and amended petitions, the amended petition must be deemed as an amendment, and not as a substitution of a new cause of action.

4. PLEADING (§ 248)AMENDMENTS — NEW CAUSE OF ACTION.

Where a recovery had on the original petition bars a recovery under the amended petition, or where both petitions are subject to the same plea, the amended petition does not state a new cause of action.

5. PLEADING (§ 248)AMENDMENTS — NEW CAUSE OF ACTION.

Where the original petition sought to recover on a judgment obtained by plaintiff against defendant on a designated date before a designated justice of the peace for a specified sum with interest, an amended petition seeking a recovery on the same judgment does not set forth a new cause of action.

6. PLEADING (§ 248)AMENDMENTS — NEW CAUSE OF ACTION.

Where a second amended petition does not set forth a new cause of action, it must be regarded as a mere amendment of the original cause of action, without regard to what was averred in the first amended petition, for the relevancy of the amendment must be determined by reference to the original petition.

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

Action by J. J. Bick against Baxter E. Vaughn, administrator of William P. Carter, deceased. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

James P. Boyd, for appellant. J. H. Whitecotton and W. W. Barnes, for respondent.

NORTONI, J.

This is a suit on a judgment. There were two amended petitions filed. On defendant's motion, the second amended petition was stricken from the files. From this action of the court, plaintiff, having excepted and preserved his exceptions by bill duly filed, prosecutes the appeal. It appears the court regarded the cause of action stated in the second amended petition as a substitute for that theretofore relied upon, and on this theory sustained defendant's motion to strike it from the files.

The original petition is inartistically drawn. The fact is, it is exceedingly informal. It was possibly drafted by plaintiff without the aid of counsel, and it contains much irrelevant and immaterial matter. However, enough appears to show that it was intended as a suit upon a justice of the peace court judgment, dated January 22, 1894, for the amount of which plaintiff prayed judgment, together with interest and costs of suit. There are recitals in the original petition, also, to the effect that plaintiff asks the revival and renewal of the lien of his judgment. However, these matters may be treated as surplusage, for it appears what plaintiff really prayed for was a judgment against the defendant upon his judgment debt thereinbefore recited. There was no writ of scire facias issued nor served upon the defendant. The process issued upon the original petition was the usual and customary writ of summons in civil cases. It was duly served upon defendant, and so returned. Putting aside the irrelevant and immaterial matter set forth in the original petition, plaintiff stated therein for his cause of action that on January 22, 1894, he recovered judgment before C. G. Baker, justice of the peace of Prairie township, in Audrain county, Mo., for $85, with 10 per cent. interest, to compound annually, and costs; that on February 19, 1903, he filed a certified copy of this judgment in the circuit court of Audrain county, Mo., and caused it to be recorded therein; that such judgment, interest, and costs have never been paid, appealed from, vacated, superseded, or satisfied, and that the same is due, owing, and unpaid to the plaintiff; that at the time of the institution of the suit it aggregated $350, for which, the petition recites, plaintiff "asks against the defendant a revival, renewal lien thereof to be continued, and prays for final judgment thereon, with 10 per cent. interest, to compound annually, and costs of the suit." As stated, upon the filing of this petition, an ordinary writ of summons was issued to defendant, which, together with a copy of the petition annexed, was duly served and return properly made. Although the petition contained a recital asking for a revival and renewal of the lien of the judgment, no writ of scire facias was issued.

Plaintiff afterwards filed an amended petition, declaring upon the same identical judgment of January 22, 1894, rendered in his favor in the justice of the peace court of C. G. Baker, justice of the peace of Prairie township, in Audrain county, Mo., for $85, with 10 per cent. interest, to compound annually, with costs; and recited, further, that a certified transcript of that judgment was filed in the circuit court of Audrain county, Mo., February 19, 1903; and afterwards, on March 2, 1903, a certified copy thereof from the Audrain county circuit court was filed in the office of the clerk of the circuit court of Monroe county, Mo., and is on record in book 1, at page 8 thereof. The amended petition recited further that on October 12, 1903, the judgment had been revived on affidavit, duly filed before W. R. Martin, justice of the peace of Monroe county, Mo.; that a certified copy of such revival had been filed in the circuit court of Monroe county, etc.; that such judgment and costs amounted to $350, which has never been paid, appealed from, vacated, superseded, or satisfied; that the amount now due, owing, and unpaid to the plaintiff in all aggregates $350, for which plaintiff asks revival and renewal lien thereof to be continued, and prays for final judgment against defendant, with 10 per cent. interest, to compound annually, and costs of suit.

Defendant having interposed an answer to the amended petition, plaintiff employed counsel, who prepared and filed a second amended petition, which was stricken from the files. The second amended petition counts upon the identical judgment as the first. It alleges that on the 22d day of January, 1894, plaintiff obtained judgment against defendant before C. G. Baker, a justice of the peace, within the township of Prairie, in the county of Audrain, state of Missouri, for the sum of $85, with interest thereon from the date of such judgment at the rate of 10 per cent. per annum, to be compounded annually, and for his costs in such case laid out and expended. It further alleged that such judgment had never been paid or satisfied, that it is still due and owing the plaintiff, and that there remains due and unpaid the plaintiff on such judgment the amount of $350, for which he asks judgment and for his costs.

Now there can be no doubt that, while the original petition filed contained irrelevant matter which might have been stricken out as surplusage, it declared upon a judgment debt alleged to be due and owing to the plaintiff from the defendant. It identified the judgment by date and the amount thereof, as well as by designating the court in which, and the name of the justice before whom, it was recovered, and the rate of interest thereon. It recited, too, that the...

To continue reading

Request your trial
37 cases
  • Robinson v. Field, 35168.
    • United States
    • Missouri Supreme Court
    • May 26, 1938
    ... ... Spurlock v. Mo. Pac., 16 S.W. 834, 104 Mo. 658; Bick v. Vaughn, 120 S.W. 618; McQuire v. Wilson, 187 S.W. 612; Ingwerson v. C. & A. Ry., 130 S.W. 411. (4) The burden was on the defendants to establish ... ...
  • Natl. Cash Register Co. v. Kay, 23379.
    • United States
    • Missouri Court of Appeals
    • April 7, 1936
    ...more fully or differently laid to meet the possible scope of the testimony, it is not a change of the cause of action. Bick v. Vaughn, 140 Mo. App. 595, l.c. 601; Rippee v. K.C., Ft. Scott & etc., Ry., 154 Mo. 1, l.c. 364; State ex rel. v. Bourne, 151 Mo. App. 104, l.c. 115; Stewart v. Van ......
  • Smith v. Harbison-Walker Refractories Co., 34329.
    • United States
    • Missouri Supreme Court
    • January 5, 1937
    ...71 Mo. App. 241; Stewart & Jackson v. Van Horne, 91 Mo. App. 656; Hudson v. Railroad Co., 173 Mo. App. 631, 159 S.W. 9; Bick v. Vaughn, 140 Mo. App. 595, 120 S.W. 618; Jensen v. Hinberks, 92 S.W. (2d) 109; Hughes v. Abraham Lincoln Life Ins. Co., 84 S.W. (2d) 973. Even if there was a depart......
  • Kelly v. City of Cape Girardeau
    • United States
    • Missouri Court of Appeals
    • January 7, 1936
    ... ... Goddard to use v. Delaney, 181 Mo. 564; ... Excelsior Steel Furnace Co. v. Smith, 17 S.W.2d 378; ... Davis v. Carp, 258 Mo. 686; Bick v. Vaughn, ... 140 Mo.App. 595; Wood v. Newberry, 48 Mo. 322; ... Shehan & Loler Co. v. Simms, 28 Mo.App. 64; ... White v. Pendy, 25 Mo.App. 542; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT