Gilmore v. Dawson
| Decision Date | 31 October 1876 |
| Citation | 64 Mo. 310 |
| Parties | ROBERT GILMORE, Plaintiff in Error, v. JNO. L. DAWSON, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Pettis County Circuit Court.
F. A. Sampson, with Crandall & Sinnett, for Plaintiff in Error, cited: Iba vs. the Hannibal and St. Joseph R. R. Co., 45 Mo. 469; Burt vs. Warne, 31 Mo. 296; Coughlin vs. Lyons, 24 Mo. 533; House vs. Duncan, 50 Mo. 453; Beattie vs. Hill, 60 Mo. 72.
Heard Bros., for Defendant in Error, cited: Donohoe vs. Chappell, 4 Mo. 34; 1 Mo. 545; 31 Mo. 296; 46 Mo. 221.
This was a proceeding instituted under the provisions of the act of March 23rd, 1870. (Laws of that year, p. 65.)
The complaint was as follows: “Plaintiff states that defendant, on the fifth day of August, 1873, and at various other times, unlawfully entered the enclosed land of the plaintiff, in Pettis county, Missouri, after being duly notified not to do so, to the damage of the plaintiff five dollars, for which he asks judgment.”
The defendant was successful before the justice, and on appeal taken was successful also in the circuit court, as his motion to dismiss the case, because there was no sufficient statement of the cause of action, prevailed.
We regard such dismissal as erroneous, for the reason that the plaintiff, pending the motion, offered to amend by inserting a particular description of the land, and for the further reason that the original statement, although not perhaps sufficiently specific, does state a cause of action, does state sufficient to amend by, and the amendment offered did not change the cause of action.
That consisted in the unlawful entry upon the enclosed land of the plaintiff, after being forbidden so to do. Our statute, with its great liberality of statement and amendment, was certainly never designed to operate more harshly than the common law. In an ordinary declaration for trespass quare clausum fregit, nothing was more frequent than for the plaintiff to declare for breaking his close in a certain parish, without naming or otherwise describing his close, and it was this uncertainty which gave origin to the practice of new assignment. (Steph. Plead. pp. 223, 224.)
But notwithstanding the foregoing error we cannot reverse the judgment, because the cause was conducted throughout as a civil procedure. The section before mentioned, specifies the act of refusing to depart on due notification by the owner, &c., of the enclosed land, as a misdemeanor, punishable on conviction by fine,...
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...amend a good petition in conformity with the evidence adduced. Carr v. Moss, 87 Mo. 447; Weber v. City of Hannibal, 83 Mo. 262; Gilmore v. Dawson, 64 Mo. 311; v. Martin, 26 Mo.App. 438; 1 McQuillan on Pleading & Practice, sec. 410. (2) First. No element of wilfulness or negligence is necess......
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...enforce the penalty for such offense must be criminal, and conform to the requirements of the constitution and laws of the State. Gilmore v. Dawson, 64 Mo. 310; Const. of Mo., art. 6, § 38, art. 1, §§ 12, 16, 30, 31; City v. Fitz, 53 Mo. 588. The only action authorized by the charter and or......
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