Luster v. Cook
| Decision Date | 06 July 1927 |
| Docket Number | No. 4270.,4270. |
| Parties | LUSTER v. COOK. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Stone County; Fred Stewart, Judge.
Action by Edith Luster against W. B. Cook. From a judgment for plaintiff, defendant appeals. Affirmed.
J. William Cook, of Crane, for appellant.
Tom N. Douglas, of Galena, for respondent.
Action against a constable for refusal to set off exemptions. Trial by court; finding and judgment for plaintiff. Defendant appealed.
A judgment was obtained in justice court in Stone county by Crane Grocery, J. V. Sweet, proprietor, against Floyd Luster and Edith Luster, who are husband and wife, and execution thereon against both defendants. This execution was delivered to the constable of the township, W. B. Cook, for service. He served garnishment upon the Bank of Hurley in which this plaintiff, Edith Luster, had $59.85 on deposit. This money was paid by the bank to the constable. The plaintiff demanded that this money be delivered to her as exempt, but the constable refused her demand and paid the amount to the plaintiff in the judgment against her and her husband. This suit followed.
In the petition filed in this case the parties are designated as "State of Missouri, at the Relation and to the Use of Edith Luster, Plaintiff, v. W. B. Cook, Defendant." This petition was amended but no change made in the designation of the parties. Defendant demurred to the amended petition on two grounds; First, that there was a defect of parties plaintiff in that the petition shows that Edith Luster is the proper plaintiff and the suit is brought in the name of the state; second, that the petition states no cause of action. This demurrer was sustained, but upon what ground does not appear. A second amended petition was then filed in which the parties were designated as "Edith Luster v. W. B. Cook." Defendant then moved to strike out this second amended petition on the ground that there was a substitution of parties; that Edith Luster had been substituted for the state of Missouri. This was overruled, and defendant filed an answer.
We are of the opinion that the amendment was permissible. The original petition was not in fact in the name of the state, but in the name of the state to the use of Edith Luster. The cause of action stated in the petition shows that Edith Luster was the real party in interest and that there was no occasion to bring it in the name of the state to her use, and we think that the words, "State of Missouri, at the Relation and to the Use of," could well have been regarded as surplusage in the original petition and Edith Luster regarded as the...
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