Goodman v. Meyer

• Citation: 38 S.W.2d 268
• Decision Date: 05 May 1931
• Docket Number: No. 21543.,21543.
• Parties: GOODMAN v. MEYER.
• Court: Court of Appeal of Missouri (US)

38 S.W.2d 268

GOODMAN v. MEYER.

No. 21543.

St. Louis Court of Appeals. Missouri.

May 5, 1931.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Max Goodman against Sidney Meyer. From an order overruling a motion to set aside the judgment, defendant appeals.

Reversed and remanded.

Jacob Mellman, of St. Louis, for appellant.

J. Greenhouse, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from an order overruling a motion to set aside a judgment.

Plaintiff filed a petition before Harry C. Meyers, justice of the peace, in which he alleged "defendant to plaintiff, debtor, in the sum of One Hundred Seventy Dollars ($170.00) for services rendered."

The case was tried before the justice of the peace, and judgment for $100 entered in favor of the plaintiff, from which judgment defendant appealed to the circuit court by filing his affidavit for appeal, executing an appeal bond, and serving notice of appeal. The case was set for trial in the circuit court, but the defendant overlooked the fact and did not appear, and that court affirmed the judgment of the justice for the failure of the defendant to appear and prosecute the appeal. This judgment of affirmance was entered at the February term, 1930, of the circuit court, on March 12, 1930. On April 21, 1930, at the April term, 1930, the defendant filed his motion to set aside the judgment of affirmance, one of the grounds of which was that the statement on which the cause of action was based, as filed in the justice court, is insufficient to sustain the judgment.

The motion therefore is based upon an irregularity patent on the face of the record, and not one depending upon proof de hors the record, and consequently, under the decisions, it is one that the court may entertain at a term subsequent to the judgment term. State ex rel. v. Riley, 219 Mo. loc. cit. 681, 118 S. W. 647; Jeude v. Sims, 258 Mo. loc. cit. 39, 166 S. W. 1048; Boggess v. Jordan (Mo. App.) 283 S. W. 57, loc. cit. 59; Stulz v. Lentin, 220 Mo. App. 840, 295 S. W. 487, loc. cit. 490.

As stated, the contention of the defendant is that the petition upon which the case was tried is insufficient to support the judgment. Under our statute (section 2185, Revised Statutes 1929) no formal pleadings are required in cases before justices of the peace; yet the plaintiff must file with the justice "the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded."

This section has been before the courts in numerous cases, and it is held that, while strict rules of pleading are not to be applied to causes of action before justices of the peace, that does not mean that it is not necessary to disclose in some manner, by the statement of the account or the statement of facts constituting the cause of action, the various elements necessary to advise the defendant of the particular demand he must defend against, and it must be sufficiently clear to enable the defendant to plead it in bar in any other action. Liberality in the construction of such pleadings cannot be carried to the point of abolishing the necessity of setting forth in one of the forms prescribed by the statute those facts necessary to show the cause of action relied on for recovery. Rosenberg v. Boyd, 14 Mo. App. 429; Nutter v. Houston, 32 Mo....