Heman v. Fanning

• Decision Date: 27 November 1888
• Citation: 33 Mo.App. 50
• Parties: WILLIAM HEMAN, Respondent, v. JAMES FANNING, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 50

WILLIAM HEMAN, Respondent, v. JAMES FANNING, Appellant.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. DANIEL DILLON Judge.

AFFIRMED.

J C. Terry, for the appellant.

The original statement was not sufficient of itself to constitute a cause of action and support a judgment. Rosenberg v Boyd, 14 Mo.App. 429; McDonough v. Daily, 6 Mo.App. 598; Morris v. Buckley, 9 Mo.App. 577; Schwartz v. Nicholson, 65 Mo. 508; Brashears v Strock, 46 Mo. 221. The amended statement allowed by the court was a complete change of the original cause of action if the original statement could be considered sufficient. If the original statement was not sufficient, then the amended statement was an amendment of nothing at all or an amendment of something which " does not advise the opposite party of what he is sued for." Brashears v. Strock, 46 Mo. 222; Webb v. Tweeder, 30 Mo. 488; Clark v. Smith, 39 Mo. 498; Hansberger v. Railroad, 43 Mo. 196; R. S., sec. 3060.

Rowe & Morris, for the respondent.

Appellant's argument is that a good cause of action must be stated in the original statement before it can be amended. It strikes us that if such was the law the statute on amendments would subserve no purpose. Why amend something that is already good and that requires no amendment? If appellant's position is correct, then when a plaintiff files a petition which fails to state facts sufficient to constitute a cause of action he can never correct his error, but must go out of court. His suit must be dismissed. The authorities do not support his point. See Mitchell v. Railroad, 82 Mo. 108; Kitchen v. Railroad, 82 Mo. 687; Gregory v. Railroad, 20 Mo.App. 448; Allen v. McMonagle, 77 Mo. 478; Schulte v. Railroad, 76 Mo. 324; Newberger v. Friede, 23 Mo.App. 631.

OPINION

THOMPSON J.

This action was commenced before a justice of the peace on the following statement of cause of action:

" St. Louis, Mo., Sept. 22, 1887. James Fanning, to William Heman, Dr., 1,950 yards grading, at 3c, $58.50; damages in delay, $191.50; $250.00."

In the circuit court a motion to dismiss the bill, because of the insufficiency of the statement and misjoinder of causes of action therein, was made and overruled. The plaintiff was thereupon allowed to file an amended statement of cause of action which recited " that defendant, on or about the twenty-second day of April, A. D., 1887, made and entered into an oral contract with the plaintiff, whereby he agreed with the plaintiff that in consideration of the sum of thirty-four cents per yard, which plaintiff agreed to pay defendant, said defendant agreed within a reasonable time to grade for the plaintiff a certain alley in the city of St. Louis, Mo., in city block No. 2310, between Hogan street and Nineteenth street and Cass avenue and Mullanphy street; that the defendant failed, refused and neglected to perform his said contract in accordance with his said oral agreement, and defendant failed, refused and neglected to grade alley in accordance with his said agreement; that plaintiff was put to great expense in excess of the sum agreed to be paid to defendant to have said alley graded; that there was ( sic ) nineteen hundred and fifty yards of grading in said alley, and that plaintiff was forced to pay and did pay, to have said alley graded, the sum of thirty-seven cents per yard; that, by reason of the failure of defendant to perform his contract aforesaid, plaintiff was damaged one hundred dollars. Wherefore," etc.

The only question for decision on this appeal is the ruling of the trial court in allowing this amendment to be filed. We think there was no error in this ruling. We concede that the original statement was not sufficient, even under the very liberal rulings in this state in favor of upholding informalities of statement in actions commenced before justices of the peace. But the statute (R. S. sec. 3060) allows a plaintiff to amend his statement in the circuit court after an appeal from the justice, " when, by such amendment, substantial justice will be promoted; " but with the proviso that " no new cause of action, not embraced or intended to be included in the original account or statement, shall be added by such amendment." The argument of the appellant is that, if the statement as it originally stood was no statement at all, its infirmity could not be cured by an amendment, because this would be equivalent to allowing plaintiff to sue in a justice's court without any statement of his cause of action and to file such statement for the first time on appeal in the circuit court. We do not think that this is a sound argument. The statute was obviously intended to place a plaintiff who brings his action before a justice of the peace in as favorable a...