Pifer v. Stanley

Gill, J. — The plaintiff, a practicing physician, sued the defendant for $25 for professional services in treating the eyes of one-of defendant’s children. On a trial in the circuit court, where the case was taken by appeal from a justice of the peace, the plaintiff had judgment and the defendant appealed. There is nqthing in the dual objection to the [519] jurisdiction of the circuit court on the alleged grounds, first, that the record failed to show that the appeal from the justice was taken within the statutory limit, and, second, the affidavit for appeal was insufficient. As to the first point, it appears that the cause was tried before the justice on February 10, 1893, and the record shows that all the papers were lodged by the justice in the circuit clerk’s office on February 18, 1893. This was in less than ten days from the rendition of the judgment before the justice and is therefore within the time provided by statute. And-astothe further point, to wit: the insufficiency of the affidavit, in that it did not state whether the appeal was taken from a judgment on the merits or on motion to tax costs, it appears that the defendant appellee went to trial on the merits without interposing any objection to the affidavit for appeal, and we hold, as was decided in Pearson v. Gillett, 55 Mo. App. 312, that the defendant thereby waived all such defects in the affidavit for appeal from the justice. "When the cause reached the circuit court the plaintiff filed an amended statement, and thereupon defendant applied for a continuance which the court denied. This is now complained of. The statute in this regard provides, that “when a party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the opposite party could not be ready for trial in consequence thereof a continuance may be granted,” etc. R. S. 1889, sec. 2128. The court evidently held that the amendment to the plaintiff’s statement was not such as to take the defendant by surprise, or such that would deprive the defendant of a fair trial if the cause was proceeded with, and we think the trial judge was clearly correct. The amendment was unimportant, and to award a continuance on account thereof would [520] have been trifling with justice. It is not every amendment to a pleading that will justify a continuance of the case; it must' be such a change therein as warrants the belief “that the opposite party could not be ready for trial in consequence thereof.” Keltenlaugh v. Railroad, 34 Mo. App. 147; Calhoun v. Crawford, 50 Mo. 458. There was then no error in forcing the defendant to trial on the amended petition. We have examined in detail the evidence and noted the several objections to some'portions' thereof, and find no substantial grounds for reversal on account of the admissions of improper testimony. The testimony of. the witness Roderick as to the manner and success with which the plaintiff treated his (Roderick’s) child for “cross-eyes” was, it must be admitted, irrelevant and doubtless incompetent. Still we do not think it of sufficient importance to warrant a reversal. The instructions to the jury seem to have been fair; there was ample evidence to justify the verdict; and all considered, the judgment should be affirmed. So ordered. All concur.