Casey v. St. Louis & S. F. R. Co.

• Decision Date: 18 January 1910
• Parties: CASEY v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

124 S.W. 562

146 Mo. App. 614

CASEY v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. PLEADING (§ 250) — AMENDMENT OF STATEMENT OF FACTS — DAMAGES.

The amendment of the statement of facts in an action for double damages for trespass on land, merely increasing the damages demanded, does not change the cause of action, and is properly allowed.

2. APPEAL AND ERROR (§ 439) — POWER OF TRIAL COURT — AFTER ALLOWANCE OF APPEAL.

The allowance of an appeal does not prevent the trial court from thereafter, during the same term, setting aside its judgment and entering a proper one.

Appeal from Circuit Court, Wayne County; Jos. J. Williams, Judge.

Action of trespass by James W. Casey against the St. Louis & San Francisco Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

W. F. Evans, W. J. & J. H. Orr, and Jas. Orchard, for appellant. V. V. Ing, for respondent.

GOODE, J.

The opinion given on the former appeal of this case will show its merits. Casey v. Railroad, 116 Mo. App. 235, 91 S. W. 419. The evidence is not contained in the present record; it being irrelevant to the points made on the appeal which are technical. The action as originally instituted was for double damages for the destruction of plaintiff's meadow and cornstalk pasturage by cattle which had strayed into his fields in consequence of defendant's omission to fence its right of way. In the original statement plaintiff laid his damages at $50 and asked judgment for twice that amount. After the remand of the case by this court to the circuit court, plaintiff was permitted to amend his statement by laying his damages at $100, instead of $50, and praying for twice the former amount. He obtained a verdict for $65, August 6, 1908, and on said verdict, on the same day, judgment was entered for $65; that is, the sum found by the jury, instead of twice said sum. Timely motions for new trial and in arrest were filed by defendant and overruled, and then on August 21, 1908, during the same term of court, an affidavit for appeal was filed and the appeal allowed and granted to this court. Afterwards, during some day in August not stated, the court adjourned until December 7, 1908, which would be an adjourned term of the August term, and continued over all undisposed of motions and proceedings. On December 8, 1908, that being the second day of the adjourned August term, the court set aside its orders overruling defendant's motions for new...