Dowdy v. Wamble

• Decision Date: 23 May 1892
• Citation: 19 S.W. 489,110 Mo. 280
• Parties: Dowdy, Appellant, v. Wamble et al
• Court: Missouri Supreme Court

19 S.W. 489

110 Mo. 280

Dowdy, Appellant, v. Wamble et al

Supreme Court of Missouri, First Division

May 23, 1892

Certified from St. Louis Court of Appeals.

The statement on which this cause was instituted reads as follows:

"State of Missouri,]

"County of Stoddard,] ss. Before J. C. Jennings, Justice of the Peace.

"John L. Dowdy, as guardian of minor heirs of George R. Harris Plaintiff, v. "Joseph Wamble and W. B. Jackson Defendants.] Statement.

"Plaintiff states that he is lawfully entitled to the possession of a certain lot of white-oak staves of the value of $ 50; that the same was on the twenty-fourth day of April, 1888 unlawfully taken, has been injured and is now wrongfully detained at the county aforesaid; that the same has not been seized under any process, execution or attachment against the property of the plaintiff, and that the plaintiff is in great danger of losing said property unless it be taken out of defendant's possession. Plaintiff further states that for the taking and the detention of said property, and for all injuries thereto, he is damaged $ 25. Wherefore plaintiff prays judgment for the recovery of said property, and $ 25 damages for the taking and detention thereof, and all injuries thereto.

Albert Jorndt, as agent of J. L. Dowdy, plaintiff, makes oath and says, that to the best of his knowledge and belief the facts and allegations contained in the above statement are just and true.

"Subscribed and sworn to before me by John L. Dowdy, this fourth day of May, 1888.

"James C. Jennings,

"Justice of the Peace."

The other facts appear in the opinion of the court.

Reversed and remanded.

Houck & Keaton and T. H. Mauldin for appellant.

J. L. Fort for respondent.

Barclay, J. Chief Justice Sherwood and Black and Brace, JJ., concur.

OPINION

Barclay, J.

This is a statutory action in the nature of replevin, begun before a justice of the peace, to recover a lot of white oak staves.

After the execution of an order of delivery, defendants personally appeared, a trial followed and plaintiff had judgment for possession, etc. Defendants appealed to the circuit court, and there made a motion to dismiss the action, because, first, the statement filed by plaintiff was not properly verified; second, that no cause of action in replevin was stated, in that it was not alleged "that the defendants or either of them took, injured or detained the property in dispute."

Pending this motion, plaintiff offered to amend his statement so as to supply the supposed omissions indicated; but the trial court refused to permit the amendment, sustained the motion to dismiss the cause and entered judgment accordingly.

From these rulings plaintiff appealed to the St. Louis court of appeals, after the ordinary moves to secure a review. The appellate judges differed in opinion as shown by the report of the case before them (41 Mo.App. 573); so they sent it to the supreme court in accordance with the provisions of the constitution. Const. Amend. 1884, sec. 6.

The result turns on the right of plaintiff (after an appeal from a justice to the circuit court) to amend a complaint which forms the basis of the action. Some omissions in the original paper resemble those held fatal in similar circumstances in Gist v. Loring (1875), 60 Mo. 487, and Madkins v. Trice (1877), 65 Mo. 656. But the case at bar arose after a material change had been made, on this very point, in the statute law existing when those decisions were rendered. We refer to the passage of what is now section 6347 (R. S. 1889). Gist v. Loring and Madkins v. Trice (and some other cases of generally similar import, Hansberger v. Railroad (1869), 43 Mo. 196; Haggard v. Railroad (1876), 63 Mo. 302) were ruled when the law declared 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." G. S. 1865, p. 724, sec. 18; R. S. 1879, sec. 3058, same as sec, 6345, R. S. 1889, down to the proviso.

In substance those rulings precluded amendments in the circuit court, introducing new facts essential to the statutory action, after an appeal from a justice of the peace. That state of the law must be kept in mind.

There are few guides to construction more useful than that which directs attention to the prior condition of the law to aid in determining the full legislative meaning of any statutory change thereof.

After the courts had construed (as above indicated) the section last quoted, the following new one was engrafted upon the statute, in 1879, in close proximity to the other, namely:

"In all cases of appeal, the bill of items of the account sued on or filed as a counterclaim, or set-off, or the statement of the plaintiff's cause of action, or of defendant's counterclaim or set-off, or other ground of defense filed before the justice, may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted; but no new item or cause of action not embraced or intended to be included in the original account or statement, shall be added by such amendment. Such amendment shall be allowed upon such terms as to costs as the court may deem just and proper. R. S. 1879, sec. 3060, same as sec. 6347, R. S. 1889.

We venture to say it would be difficult to suggest language having a broader significance in this connection than the words "intended to be included in the original account or statement" as here used. Looking at the prior law and to the manifest purpose in changing it, namely, to simplify yet further the proceedings in causes originating before justices, we do...