Moran v. Montz

• Decision Date: 01 December 1913
• Parties: MORAN v. MONTZ et ux.
• Court: Missouri Court of Appeals

162 S.W. 323

175 Mo. App. 360

MORAN v. MONTZ et ux.

Kansas City Court of Appeals. Missouri.

December 1, 1913.

Rehearing Denied January 5, 1914.

1. JUSTICES OF THE PEACE (§ 174)—AMENDMENT OF STATEMENT—NEW OR DIFFERENT CAUSE OF ACTION.

Under Rev. St. 1909, § 7587, providing that the original statement in the justice court may, on appeal, be amended to supply any deficiency or omission, but that no new item or cause of action shall be added, an original statement by an attorney for service rendered "in connection with the commitment" of defendant's wife to the asylum was properly amended, so as to read "commitment and discharge," since it did not add a new item or cause of action, but only more specifically stated the services for which the recovery was sought.

2. HUSBAND AND WIFE (§ 19)—NECESSARIES —COUNSEL FEES OF WIFE.

Where an attorney, employed to defend a defendant who was charged with the murder of his father, and whose wife, after he had been committed to jail, became violently insane, rendered services in connection with her commitment to an asylum, the law will imply a promise by defendant to pay for same, though at the time they were rendered he knew nothing about them, since, under the circumstances, they were necessaries for which defendant, though in jail, was liable, notwithstanding the statute placing married women upon an equality with single women as to property rights.

3. HUSBAND AND WIFE (§ 19)—CONSIDERATION—SUFFICIENCY.

A just claim for necessaries furnished a wife is sufficient consideration for the husband's subsequent promise to pay for them.

4. HUSBAND AND WIFE (§ 238)—ACTIONS AGAINST HUSBAND AND WIFE—TO CHARGE SEPARATE ESTATE.

Under Rev. St. 1889, § 6869, as amended by Laws 1895, p. 222, providing that no execution shall issue against the separate estate of the wife for any debt of the husband for necessaries furnished the wife, unless she was a party to the action and all questions involved therein determined, and recited in the judgment and execution thereon, a judgment, though in an action to which the wife was a party, was improperly rendered against her, where neither the petition, judgment, or execution described the separate estate sought to be charged, or recited that it was for necessaries.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

Action by M. G. Moran against Joseph Montz and wife. Judgment for plaintiff, defendants appeal. Affirmed as to defendant, Joseph Montz, and reversed as to defendant, Mary Montz.

W. M. Fitch, of Jefferson City, for appellants. E. M. Swartz, of St. Joseph, for respondent.

JOHNSON, J.

This suit originated in a justice court upon the following statement: "M. G. Moran, Plaintiff, v. Joseph Montz and Mary Montz, Defendants. Plaintiff states that the defendants are justly indebted to him in the sum of $200 for legal services performed, moneys advanced, and liabilities and expenses incurred during the month of May, 1910, in connection with the commitment and discharge of defendant Mary Montz, the wife of the defendant Joseph Montz, to State Hospital No. 2, an institution for the treatment of insane persons. Plaintiff asks judgment against the said defendants in the sum of $200." After the cause was appealed to the circuit court, the italicized words were interlined by leave of court, granted over the objection of defendants who claimed and still claim that the amendment was improper, since "it added a new item or cause of action, and thereby changed the cause of action as tried in the justice court." The statute (section 7587, Rev. Stat. 1909) reads that a statement filed in a justice court "may be amended upon appeal in the appellate court to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment." This statute has been liberally construed in the reported cases, and the rule is to allow all amendments in the circuit court except those which attempt to inject a new and independent cause of action into the case. Slaughter v. Davenport, 151 Mo. 26, 51 S. W. 471; Brennan v. McMenamy, 78 Mo. App. 122; Clark v. Zane, 165 Mo. App. 505, 148 S. W. 967. The amendment under consideration did not add a new item or cause of action, nor enlarge the cause pleaded in the original statement. Its only effect was to give a more specific statement of the services for which plaintiff claimed the right to recover compensation in the sum of $200. The amendment was properly allowed. A jury was waived in the circuit court, and judgment was rendered for plaintiff against both defendants in the sum of $150. Defendants appealed, and argue that there is no evidence in the record supporting the judgment.

Defendants, who are husband and wife, resided in Clinton county. In January, 1910, the defendant Joseph was indicted as the murderer of his father, and was arrested and committed to the jail in Clinton county without bail. His wife, the defendant Mary, was also indicted as an accessory before the fact, and was admitted to bail. After her release on bond she visited the family of Capt. Delaney in Cameron. Her health failed rapidly, and she became sick in body and mind. Thinking a change of climate and environment might prove beneficial Delaney arranged for her to become a guest in the home of his son, who lived in Omaha, Neb. The change did not have the desired effect, and in the following May the Delaneys, acting under the advice of a physician, concluded to remove her to the State Hospital for the Insane at St. Joseph. Her reason had become completely dethroned, and she was taken by a nurse to St. Joseph, where they arrived one Saturday night. In response to a request telephoned by Capt. Delaney from Cameron, J. D. O'Connor, a lawyer of St. Joseph, met the party at the union passenger station, and had the demented woman taken to the police station, where she was allowed to remain overnight in charge of the matron. Plaintiff, an attorney at St. Joseph, had been employed by Joseph Montz to defend...