Biddle v. Boyce

• Decision Date: 31 October 1850
• Parties: JOHN BIDDLE v. HENRY BOYCE.
• Court: Missouri Supreme Court

13 Mo. 532

JOHN BIDDLE

v.HENRY BOYCE.

Supreme Court of Missouri.

October Term, 1850.

ERROR TO ST. LOUIS CIRCUIT COURT.

GANTT, for Plaintiff. The plaintiff had a right of action, either of assumpsit or trespass, under the old system. It matters not which of these forms of action be judged most appropriate. It is submitted that either of them could be sustained by the evidence, but if either one of them be so, the the petition is good. If the facts stated in the petition be such as would support a petition, drawn so as to conform to the views entertained by the counsel for the defendant, then the petition demurred to is good, and the judgment of the court below is erroneous and should be reversed. Form of action is entirely out of the question. Everything of that kind is entirely done away with by the recent practice act under which this suit was brought. It was unnecessary therefore, that it should appear from the petition whether the action should have been assumpsit or trespass under the old system. Yet this is precisely the objection taken by the demurrant.

RYLAND, J.

This is a proceeding under the new law reforming the pleadings and practice in courts of justice in Missouri. The plaintiff filed his petition in the Circuit Court of St. Louis county, as follows: The plaintiff states that he is the owner and proprietor of a lot of ground in the city of St. Louis and State of Missouri, described as lot number six (6) in block one hundred and forty-five, situated on the west side of Sixth street, between Carr and Biddle streets, having thirty-two feet seven inches in front by one hundred and twenty-five feet in depth, to an alley twenty feet wide, on which lot of ground is a wooden building. That said lot of ground and premises were until the fifth day of September, eighteen hundred and forty-eight, in the possession of a certain Dennis Delaney, to whom they had been demised by a lease, then expiring, and that from the said 5th day of September, 1848, up to the 5th day of September, eighteen hundred and forty-nine said defendant has received and converted to his own use the rents and profits of said premises monthly, amounting in all, as plaintiff is informed and believes, to the sum of two hundred and fifty dollars, which sum of money so received by said defendant, and of right belonging to said plaintiff, he, the said defendant, refuses to pay over to said plaintiff, although so to do the said defendant was specially requested on the 24th day of September, in the year eighteen hundred and forty-nine, at St. Louis, in the State of Missouri, wherefore plaintiff prays judgment...