Doolittle v. Ward & Coppage
| Decision Date | 23 February 1909 |
| Citation | 116 S.W. 1121,135 Mo.App. 616 |
| Parties | DOOLITTLE, Respondent, v. WARD & COPPAGE, Appellants |
| Court | Missouri Court of Appeals |
Submitted January 27, 1909.
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
AFFIRMED.
Judgment affirmed.
Duncan & Bragg for appellants.
B. A McKay for respondent.
This action was originally commenced before a justice of the peace in Pemiscot county, and taken from there to the circuit court, where, on a trial, judgment was rendered in favor of the respondent, plaintiff below, from which judgment an appeal has been prosecuted to this court. The transcript of the justice states that it is an action on a statement filed before him. That transcript is accompanied by the papers which were filed before the justice, which, as shown by the transcript now before us, consisted of an account against Ward & Coppage, appellants, made up of various items, the total of which is $ 117, and attached to it is what purports to be a copy of an order for "cuts" for advertising matter. At the trial in the circuit court defendants filed a motion to dismiss the action for want of a sufficient statement of any cause of action, the contention being that the action was founded upon the order above referred to and that it was the contract on which the action was founded that neither the original order nor a duly verified copy thereof was filed with the justice, no averment having been made of loss of the original. An examination of the record and of appellants' statement and argument in the case shows that the burden of their complaint is based upon this supposed omission. It is sufficient to say, on this proposition, that it is evident that the suit was regarded by the plaintiff and the justice of the peace, and appears by the statement filed before the justice, to be founded on the account, and the copy of the order or contract filed with the account, which account is verified by affidavit of plaintiff does not appear to be anything more than a part of the evidence in the case. The item may have originated, probably did originate, under this order or so-called contract, but the action, properly speaking, is on the account, and we think that it is within the provisions of section 3853, Revised Statutes 1899, as a suit founded on an account. The first clause of this section provides that "When the suit is founded upon any instrument of...
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