Pattison v. Lutz

• Citation: 1 Mo.App. 133
• Parties: E. W. PATTISON, Appellant, v. GEORGE A. LUTZ, Respondent.
• Decision Date: 14 February 1876
• Court: Court of Appeal of Missouri (US)

1 Mo.App. 133

E. W. PATTISON, Appellant,

v.GEORGE A. LUTZ, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

In a suit before a justice of the peace, not founded on account, nor on the instrument of writing filed with the justice, a statement of facts constituting the cause of action such as will inform defendant of the nature of the claim, and specific enough to bar another action for the same cause, must be filed with the justice before summons is issued.

APPEAL from St. Louis Circuit Court.

General term affirmed and cause remanded.

E. W. Pattison, for appellant, cited: 2 Wag. Stat. 1059, sec. 6; Berrucker v. Miller, 37 Mo. 498; Robinson v. Walker, 45 Mo. 117; Sevainson v. Bishop, 52 Mo. 227; Forbes v. Shellabarger, 50 Mo. 558; Smith v. Monks, 55 Mo. 106.

Gottschalk, for respondent, cited: Wag. Stat. 270, sec. 8, p. 814, sec. 13; Stone v. Corbett, 20 Mo. 353; Whisler v. Bragg, 31 Mo. 124; Rev. Stat. 1855, p. 931, sec. 13; Harris v. Hanon, 3 Mo. 450; Bacocke v. Blount, 6 Mo. 338; Clemens v. Collins, 11 Mo. 320; Mullin v. Pryor, 12 Mo. 307; Collins v. Warburton, 3 Mo. 203; Baker v. Blades, 23 Mo. 405; Garesché v. Chouteau, 37 Mo. 413.

BAKEWELL, J., delivered the opinion of the court.

This cause was originally tried before a justice of the peace, where judgment was given for plaintiff. On appeal to the Circuit Court the case was tried anew and judgment rendered for plaintiff at special term, but, on appeal to general term, the judgment of special term was reversed, and plaintiff appeals to this court from the judgment of the Circuit Court at general term, reversing and remanding the cause.

The following paper was filed in the justice's court; nothing else was filed prior to the issue of summons in the cause:

“ St. Louis, June 30, 1871.

MR. BROWN: Please pay to Mr. Samuel St. Clair the $160 on that account what you owe me.

GEORGE A. LUTZ.”

The paper was indorsed:

“Pay to Wilson Bros. & Co. on account of Samuel St. Clair.” “Pay E. W. Pattison, for collection, on account. Wilson Brothers.”

It appears from the evidence that Lutz ordered a carload of staves from Brown, and either paid him $160 on account, leaving a balance of $57 due after the receipt of the staves, or took the staves in satisfaction of a debt of $160 due from Brown and Lutz. St. Clair subsequently claimed that the staves were his, whereupon Lutz paid St. Clair the balance of $57, and gave him the paper set forth above, for the purpose, as St. Clair said, of enabling St. Clair to settle with Brown. On taking the paper, St. Clair told Lutz that, if Brown did not pay him, he should come back upon Lutz. Brown is insolvent and a non-resident, and refused to pay. There was also evidence tending to show that Brown owed Lutz $160, and sent the staves to pay the debt. A motion to dismiss the suit because there was no cause of action,...