Strathmann v. Gorla

• Decision Date: 01 May 1883
• Citation: 14 Mo.App. 1
• Parties: HENRY STRATHMANN, Respondent, v. AUGUST GORLA, Appellant.
• Court: Missouri Court of Appeals

14 Mo.App. 1

HENRY STRATHMANN, Respondent,

v.AUGUST GORLA, Appellant.

St. Louis Court of Appeals, Missouri.

May 1, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

H. B. O'REILLY, for the appellant.

T. J. CORNELIUS, for the respondent.

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

This action was begun before a justice of the peace. The statement of the cause of action filed before the justice was as follows:--

“Augustus Gorla to Henry Strathmann, Dr., to one-half amount of judgment for debt and costs in favor of C. E. Smith and against said Strathmann, in case No. 34, August 1880, before Von Gerichten, J. P., instituted by Smith against Strathmann & Gorla on their joint contract. Total amount, $44.30-- $22.15.””””

On trial anew in the circuit court, defendant moved to dismiss on the ground that there was no statement of the facts constituting the cause of action. This was overruled.

It appears from the testimony introduced on the trial that Strathmann & Gorla, having places of business near Twelfth and Olive Streets, in St. Louis, at a time when a city ordinance for restoring the hay market to the place on Twelfth Street, near Olive, where it had formerly been, was pending before a committee of the municipal assembly, employed one Smith, an attorney, to advocate the passage of this ordinance before this committee. The ordinance was defeated; and Smith sued Gorla & Strathmann for the fee agreed upon. After service of summons, Gorla paid Smith $15, and the suit was dismissed as to him; and Smith got judgment against Strathmann for $35 and costs, which Strathmann paid on execution. This action was for the recovery of one-half of the amount thus paid by Strathmann. There was judgment in favor of plaintiff for $10 and costs.

We think that the motion to dismiss was properly overruled. The statute provides (Rev. Stats. sect. 2851) that “no formal pleadings upon the part of either plaintiff or defendant shall be required in a justice's court; but, before any process shall be issued in any suit, the plaintiff shall file with the justice the instrument sued on, as a statement of the account, or of the facts constituting the cause of action upon which the suit is founded.”

The revision of 1855 contained the provision (Rev. Stats. 1855, p. 931, sect. 13) that “in every suit not founded on an account, or on an instrument of writing, a statement of facts constituting the cause of action shall be filed with the justice before any process shall be issued in the suit.” The former revisions provided that, in all suits founded on instruments of writing, or on accounts, the instrument of writing, or bill of items, should be filed before issuing process (Rev. Stats. 1845, p. 810), and that, when the parties appear, the justice shall require a brief verbal statement of the nature of the demand. Rev. Stats. 1835, p. 354, sect. 8; Rev. Stats. 1845, p. 643, sect. 8. This last provision has been retained unchanged. In the revision of 1879, the statute was amended as to the written statement by consolidating the provisions of sections 9, 12 and 13, pages 700-1, of the revision of 1865, the law remaining substantially the same as it was in 1855, and as it has been ever since that time.

The act of 1825, establishing justice's courts, provided that “in all suits, a brief statement of the cause of action and the amount claimed, shall be made in writing and filed with the justice, and the same, or a copy annexed to the summons; but form, in such statement, shall not be regarded, so as the same be sufficient to apprise the defendant of the nature of the charge against him.”

This provision seems to have been omitted from the revisions of 1825 and 1835, and is, as we have seen, substantially re-enacted in the revision of 1855. But the decisions as to the character of the statements required have been uniform; and it is not perceived that the supreme court has been more strict in its rulings when the law required a written statement in all cases--as it did before 1835 and since 1855--than it was when there was no provision for any statement when the action was not upon a written instrument, other than the statement upon the docket of the justice, the bill of items, and the oral statement which the justice might require when the parties appeared for trial, and which he was directed to require if so requested by defendant.

It has been the uniform ruling in Missouri that matters of mere form might safely be disregarded in proceedings before a justice, and that for the reasons stated in Casey v. Clark (2 Mo. 12), that the object of the legislature was to simplify these proceedings, so that every man could be his own lawyer.

Where a written statement was required, it was held that it must be substantially such as would protect the plaintiff, by being a bar to another action for the same transaction, and, of course, that it should be of such a nature as would inform the defendant what he was sued about. Much might be left to implication; but there must be no such uncertainty as to leave a reasonable doubt as to what defendant was sued for. This is well illustrated by the case just cited, decided under the revision of 1825.

The statement of the cause of action is in these words “ John J. Clark v. Hardin Casey: In an action of trespass, by the illegal use of one or more of his horses, in the summer of 1826, and the consequent loss of one of his horses at the bone mill in the town of Jefferson, or by imprudent and unauthorized usage thereof to one of his beasts, say a black mare, and he claims in damages for the same to the amount of $28.” Was this action for the use of several horses? or for injury to several of them? or for the loss of one of them and, if so, which one? It does not appear that defendant could at all know from this statement what he was sued for, nor is there anything in the opinion from which it can be inferred that anything occurred upon the trial that would sufficiently inform the defendant what the suit was meant to be about. The statement remains obviously and variously defective in substance, after every implication has been unfolded to the utmost.

Early v. Fleming was a case in which plaintiff simply filed a bill of items for three hogs, whether purchased, killed, or stolen by defendant, the statement did not say. The justice's docket showed the nature of the demand to be for stock of plaintiff shot by defendant. It was held that, as the parties manifestly understood the nature of plaintiff's demands, this was enough. 16 Mo. 154.

Inlow v. Pearson (20 Mo. 322) was an action of trespass for cutting and carrying away timber from plaintiff's land. The complaint was in the form of an account; but it was held sufficient, as the recovery was limited to the damages for the mere taking of the timber.

Burt v. Warne (31 Mo. 296) was an action for trespass. The statement was: “E. W. Warne in acc't Calvin C. Burt, Dr. To damage done to building and premises in block 84 of the city of St. Louis, $50.” This was held to be sufficient.

In these cases, and many others that might be cited from our reports, from the earliest day up to this time, it is necessary to resort to implication to support the statement. The only inquiry has been whether the facts are sufficiently set forth to enable the plaintiff to know for what he is sued and to bar another suit for the same cause of action.

Coughlin v. Lyons & Sullivan (24 Mo. 533) was a case in which the evidence showed that defendant caused a constable to take the property in question from plaintiff's possession at the suit of defendant against another person, and that the constable still had possession of the property of which plaintiff was shown to be the owner. The statement was this: “James Lyon and Edward Sullivan, partners as Lyon & Sullivan, to Peter J. Coughlin, Dr., 1855, February 20th. To 41 hams, 464 1/2 pounds at 10 cents, $46.45; 2 bbls. whisky, 77 1/2 gals., at 28 cents, $21.70; total, $68.15.” This statement, which seems to be for goods sold and delivered, was held to be good, though the action was for money had and received, the plaintiff waiving the tort. This case is cited and followed in Hale v. Van Dever (67 Mo. 732).

The following statement before a justice was held good in this court in Fitzgerald v. Murphy (9 Mo. App. 572): “Plaintiff states that heretofore, to wit, on the 20th of January, 1875, defendant made, executed, and delivered to plaintiff, for value received, his certain instrument of writing, hereto attached, in words and figures as follows, to wit: ‘St. Louis, January 20th, 1875. Mr. James Coff: Please pay John Fitzgerald $57.00 for plastering done on your house on Compton Ave. C. C. Murphy.’ That the said James Coff failed to accept or pay the said sum named in said instrument of writing, and has ever since failed and refused to do so; of all of which defendant was duly notified; that said sum of $57.00 remains due from defendant to plaintiff, and wholly unpaid, wherefore plaintiff prays judgment,” etc. As the evidence showed that plaintiff, at defendant's request, and for him, had done plastering on Coff's house, and that upon plaintiff's applying to defendant for payment, defendant gave this order, which Coff refused to pay, and which represented the amount which defendant owed plaintiff, and that defendant afterwards promised to pay plaintiff the order, it was held that the defendant must have known from this statement what he was sued for, and that there was enough to bar another action, and that the statement was therefore sufficient.

The statement in the present case implies, though it does not say, that plaintiff had paid the judgment in question. It is impossible that defendant could misunderstand, and it is clear from the record that he perfectly well understood, what the action was about. The statement was sufficient, we think, to bar another action for the same matter, and we consider that we should be departing from a wholesome and...