Boughton v. St. Louis, I. M. &a S. Ry. Co.

• Decision Date: 23 February 1887
• Parties: GEORGE N. BOUGHTON, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 10

GEORGE N. BOUGHTON, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 23, 1887

APPEAL from the Stoddard County Circuit Court, JOHN G. WEAR, Judge.

Reversed and remanded.

GEORGE H. BENTON, for the appellant: The amended petition substituted a different cause of action in the circuit court from that which was tried by the justice of the peace. Rev Stat., sect. 3058; Clark v. Smith, 30 Mo. 498; Hansberger v. Railroad, 43 Mo. 196; Beattie v Hill, 60 Mo. 71; Sandeen v. Railroad, 79 Mo 278.

GEORGE N. BOUGHTON, pro se.

OPINION

ROMBAUER J.

This suit was commenced before a justice of the peace on the following statement:

" The plaintiff states that the defendant is indebted to him in the sum of eighty-two dollars and forty-one cents, for ten oak piles thirty-five feet long, and seventeen oak piles forty feet long, making 1,030 feet of piling at eight cents per foot, amounting to eighty-two dollars and forty cents, for which he asks judgment."

Judgment was rendered by the justice for the amount claimed, and the defendant appealed.

In the circuit court the plaintiff, by leave of court, filed the following amended statement:

" Now comes the plaintiff, and, by leave of court, files this, his amended statement, and states that the defendant is indebted to him in the sum of one hundred and fifty dollars, for a lot of oak piling furnished the defendant in the year 1879, on the defendant's road, between Dudley Station and Poplin Station, in Stoddard county."

The defendant moved to strike out this amended statement, because it changed the cause of action. The court overruled this motion, and, upon a trial of the facts, rendered a judgment against the defendant for one hundred and ninety-two dollars.

The statement of the case indicates the only disposition which can be made of it. The law provides 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." Rev. Stat., sect. 3058. It appears, by the record, that the justice tried the plaintiff's claim to compensation for a given quantity of piling furnished by the plaintiff to the defendant, at a certain price. As the justice gave to the plaintiff all that he claimed, and his statement warranted, it is not conceivable how, upon any theory of the facts, the circuit court could...