Thieman v. Goodnight

• Decision Date: 13 April 1885
• Citation: 17 Mo.App. 429
• Parties: L. F. THIEMAN ET AL., Respondents, v. G. G. GOODNIGHT, Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 429

L. F. THIEMAN ET AL., Respondents, v. G. G. GOODNIGHT, Appellant.

Court of Appeals of Missouri, Kansas City.

April 13, 1885

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded with directions.

The facts are sufficiently stated in the opinion.

S. G KELLEY and WM. H. BRINKER, for the appellants.

I. The court erred in overruling defendant's motion to strike out the amended complaint and in refusing to dismiss the cause, for the paper filed before the justice did not state facts sufficient to constitute a cause of action nor did it comply with the statute.--Revised Statutes, 1879, sect. 2851; Brashears v. Strack, 46 Mo. 221; Swartz v Nicholson, 65 Mo. 508; Gist v. Loring, 60 Mo 487.

II. The court erred in permitting plaintiff to amend by bringing in new parties plaintiff in the circuit court, for it made a different cause of action.--Revised Statutes, 1879, sect. 3058; Beattie v. Hill, 60 Mo. 72; Gist v. Loring, supra. This amendment violates sect. 3060 of Revised Statutes, 1879, for it embraces a new cause of action, in favor of the plaintiffs other than Thieman, which was not in contemplation in the suit before the justice.

III. There is a total failure of proof, and the first declaration of law asked by defendant should have been given.-- Pier et al. v. Heinrichoffen, 52 Mo. 33; sect. 3702 Revised Statutes, 1879.

IV. The third declaration of law asked by defendant should have been given. There was a complete revocation of the offer of reward.-- Loring v. Boston, 7 Metcalf 56; Harson v. Pike, 16 Ind. 140; State v. Auditor, 61 Mo. 263; Shuey v. United States, 2 Otto (U. S.) 73.

V. The judgment should be reversed for error committed by the court in refusing to declare the law as asked by defendant in fourth and fifth instructions. There was no contract, for both parties did not assent to its terms.-- Howland v. Lownds, 51 N.Y. 694; 10 Am. Reports 654; Fitch v. Snedaker, 38 N.Y. 248; Ball v. Newton, 7 Cush. (Mass.) 599; Johnson v. Fessler, 7 Watts 48; Brown v. Rice, 29 Mo. 322; Tuttle v. Love, 7 Johns. 470; Esmay v. Gorten, 18 Ill. 483.

O. L. HOUTS, for the respondents.

I. Under the facts respondents were entitled to recover, and it can make no difference what instructions were given or refused.-- Hayden v. Songer, 26 Am. Reports 1; Russell v. Stewart, 44 Vermont 170; Story on Contracts, sect. 380. Knowledge of the offer of a reward before services rendered is not essential to recovery.-- Hayden v. Songer, 26 Am. Reports and note and authorities cited therein. The revocation of the offer of reward would not affect plaintiffs' right of recovery because they had no knowledge thereof before the services were rendered.

II. Since the amendment of the statute incorporated in the revision of 1879, under which the case was tried, it is submitted that there can be no doubt of the right of the respondents to file the amended petition.--Revised Statutes, Mo., 1879, sect. 3060; Webb v. Robertson, 74 Mo. 380; Allen v. McManagall, 77 Mo. 478; Butts v. Phelps, 79 Mo. 302; Boulware v. R. R. Co, 79 Mo. 494. The amendment could have been made in the justice's court.-- Revised Statutes, 1879sect. 3060. Practice in circuit court provides for amendments of the same kind.--Rev. stat., sects. 3567 and 3568. It further provides that in appeal from justice's court, the cause shall be tried anew without regard to errors committed before the justice.

III. The cause of action was not changed by the amendment. The cases cited by appellant are not applicable, their facts being wholly unlike the facts in this case.

OPINION

PHILIPS P. J.

This action was instituted in a justice's court by the plaintiff, L. F. Thieman, and was based on the following statement filed with the justice:

" CONCORDIA, Mo., Dec. 1st, 1881.

Mr. George G. Goodnight,

Dr. to Louis F. Thieman,

October 1st, 2nd, 3rd, 1881, to arresting Edward Easley, alias Sam. White, a fugitive from justice, twenty-five dollars ($25)."

On trial before the justice there was a verdict and judgment for defendant, from which the plaintiff duly prosecuted his appeal to the circuit court. In the circuit court the plaintiff was permitted, against the objection of the defendant, to file an amended statement by adding the name of Uriah Farrell and William B. Taggart as co-plaintiffs. This amended statement then proceeded as follows:

" Plaintiffs for amended petition state that during the year 1881 a certain horse, the property of defendant, was stolen. That defendant afterwards offered and promised to pay to any one the sum of twenty-five dollars for the arrest or capture of the thief, person or persons, that stole said horse. That afterwards, in consideration of said offer and promise, on or about October 1st, 1882 [1881] plaintiff captured, arrested and detained one Edward Easley, alias Sam. White, as and who was the thief and person who stole said horse, and the person for whose arrest and capture plaintiff [defendant?] offered to pay the said sum of twenty-five dollars. Plaintiffs state they have demanded of defendant payment of the said sum; that it had been refused. Wherefore plaintiffs ask judgment for the said sum with interest and costs."

The cause was then tried before the court without the intervention of a jury. The court found the issue for the plaintiff and rendered judgment accordingly for the amount of the reward. From this judgment the defendant prosecutes this appeal.

I. Several questions are presented by this record which have been extensively argued by counsel, but there lies at the very threshold of the controversy one question, which, if determined adversely to the respondents, will conclude this case, without passing on the others. This question is, the right of plaintiff, Thieman, to amend his cause of action in the circuit court by adding the names of the other plaintiffs as parties.

Section 3058 of Revised Statutes declares that: " The same cause of action, and no other, that was tried before the justice, shall be tried before the appellate court upon the appeal."

There is little room for doubt that the statute, as understood by the profession and interpreted by the courts prior to the revision of 1879, did not recognize the right of amendment on appeal by substituting or adding new parties, as was done in this case. It is true that Wagner, J., in Howe v. Duncan (50 Mo. 453), seemed to think that it was permissible on appeal from a justice's court: " Whenever it may be necessary to the determination of a controversy to have other parties, the court may order them brought in by amendment." But in the later case of Beattie v. Hill (60 Mo. 75), the same learned judge pronounced said enunciation in House v. Duncan, as a mere obiter dictum, " which upon mature consideration" he did not deem " sustainable upon a correct construction of the statute." In this latter view we concur; and it must control this decision, unless some later legislative enactment has altered the law in this respect. Counsel for respondents contend that section 3060, incorporated for the first time in the revision of 1879, authorized the amendment. Said section is as follows: " In all cases of appeal the bill of items of the account sued on--or the statement of plaintiff's cause of action--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 to such statement, etc."

The well understood purpose of this amendment of the statute gives little countenance to the construction contended for by respondents. As it is an innovation upon or enlargement of the former rule of practice, its operation is not to be extended beyond its...