Jarrett v. Mohan

• Decision Date: 28 February 1910
• Citation: 142 Mo. App. 29,126 S.W. 212
• Parties: JARRETT v. MOHAN.
• Court: Missouri Court of Appeals

126 S.W. 212

142 Mo. App. 29

JARRETT v. MOHAN.

Springfield Court of Appeals. Missouri.

February 28, 1910.

1. JUSTICES OF THE PEACE (§ 124)—MOTION IN ARREST OF JUDGMENT.

In an action before a justice, where the statement claimed $9, but stated that it was for 11 trees at 70 cents each, thereby showing that plaintiff was entitled to recover only $7.70, the question of the defect was properly raised by motion in arrest of a judgment for $9 in the following language: "On the record said judgment is erroneous."

2. JUSTICES OF THE PEACE (§ 31)—PROCEDURE.

The court of a justice of the peace is a tribunal designed for the convenience of parties litigant who may appear without the aid of attorneys.

3. JUSTICES OF THE PEACE (§ 91)—PLEADING —STATEMENT—SUFFICIENCY.

Since Rev. St. 1899, § 3852 (Ann. St. 1906, p. 2135), provides that no formal pleadings shall be required in justice's courts, the final test is whether plaintiff's statement is sufficient to notify defendant of the nature of the cause of action, and to bar another action for the same subject-matter.

4. JUSTICES OF THE PEACE (§ 150)—APPEAL— REVERSAL.

When proper objection to a defective statement in a justice's court was made before trial, the appellate court will reverse the judgment, but, if no such objection was made, the judgment will be affirmed, unless the statement be fatally defective and insufficient to support a judgment.

5. JUDGMENT (§ 263) — APPEAL AND ERROR (§ 193)—COMPLAINT—DEFECTS.

A petition or statement that wholly fails to state any cause of action may be taken advantage of by motion in arrest of judgment or by calling the attention of the court to it for the first time on appeal, though such practice is only tolerated where the complaint wholly fails to set forth a cause of action.

6. JUSTICES OF THE PEACE (§ 91)—PLEADING —STATEMENT—SUFFICIENCY.

Rev. St. 1899, § 3852 (Ann. St. 1906, p. 2135), provides that plaintiff shall file with the justice the instrument sued on or a statement of the account, or of the facts constituting the cause of action on which the suit is founded. Held, that a statement reading, "May 10, 1909, M. (defendant) Dr. to J. (plaintiff) $9 for money wrongfully paid for tie trees as follows: For eleven trees at .70 each," and signed by plaintiff, while defective, was sufficient as against the objection made after the jury was sworn, and a witness was offered to prove plaintiff's case, that there was no statement filed that would support a judgment.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by J. F. Jarrett against Mike Mohan. Judgment for plaintiff, and defendant appeals. To be affirmed if plaintiff enter a remittitur within 20 days; otherwise, to be reversed and remanded.

Thomas F. Lane, for appellant. J. F. Fulbright, for respondent.

GRAY, J.

This case was instituted before a justice of the peace upon the following alleged cause of action: "May 10, 1909. Mike Mohan, Dr., to J. F. Jarrett, $9.00 for money wrongfully paid for tie trees as follows: For eleven trees at .70 each. [Signed] J F. Jarrett." The cause was tried before the justice and appealed to the circuit court, and there tried before a jury at the June term, 1909, resulting in a verdict and judgment for the plaintiff in the sum of $9. The defendant has appealed to this court.

The only proceedings at the trial in the circuit court which are before us for review are the action of the court in overruling the defendant's objection to the introduction of testimony at the beginning of the trial before the jury, and the action of the court in overruling the motions of the defendant for a new trial and in arrest of judgment, to which rulings of the court the defendant has properly saved his exceptions. The judgment is for $9, and the plaintiff's cause of action only shows that he was entitled to recover $7.70. It is true the statement speaks of $9, but states that it is for 11 trees at 70 cents each, and therefore shows on its face that the plaintiff was not entitled to recover the amount of the judgment. This question was properly raised by the motion in arrest, in the following language: "Upon the record said judgment is erroneous."

The defendant attacks the sufficiency of the plaintiff's cause of action. The law is well settled in Missouri that the court of the justice of the peace is a tribunal designed and intended for the convenience of parties litigant, in which parties may appear and settle their law suits without the aid of attorneys. Section 3852, Rev. St. 1899 (Ann. St. 1906, p. 2135), provides no formal pleadings shall be required on the part of either party; and the final test has always been: Is the statement sufficient to notify the defendant of the nature of the cause for which he is sued, and sufficient and definite to bar another action for the same subject-matter? Hammond v. Berkowitz, 123 S. W. 502. Measured by the above rule, is the statement in this case sufficient? It will be noticed that the only date in the statement is May 10, 1909, and this is the date that suit was commenced. The statement does not attempt to give any date when it is claimed the money was wrongfully paid for tie trees. It is not an action on an account proper, as this form of action is generally understood. Section 3852, Rev. St. 1899, provides: "The plaintiff shall 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." It will be noticed there are three kinds of actions mentioned in this section. If the suit is upon an instrument executed by the defendant, the statute provides the same shall be filed. If the suit is upon an account, a statement of the account shall be filed. And in other cases a statement of the facts upon which the cause is founded shall be filed. The cause of action in this case comes within the class requiring a statement of the facts to be filed. While this is true, our courts have never held that the cause of action might not be properly stated in the form of an account. In Sone, to Use, v. Wallendorf, 187 Mo., loc. cit. 13, 85 S. W. 592, our court said: "While the suit authorized by the statute for the recovery of delinquent poll taxes is not one upon an instrument of writing or an account, we do not mean to say that a cause of action might not be properly stated in the form of an account." The statement is undoubtedly defective, and is not a good pleading when tested by the very liberal rule by which the sufficiency of such statements are determined in this state. When the appellate court finds the statement to be defective, the reversal of the judgment does not necessarily follow. When proper objection was made in the trial court before trial to the defective pleading, the appellate court will reverse the judgment, but, if no such objection was made, the judgment will be affirmed, unless the statement be fatally defective and insufficient to support a...