Wright v. Cleveland

BROADDUS, P. J. This suit was commenced before a justice of the peace where it was tried and plaintiff recovered judgment from which defendant appealed to the circuit court where it was tried anew and plaintiff again recovering the defendant again appealed. The plaintiff instituted suit by filing a paper, viz: “Moberly, Mo., Nov. 18, 1908. Merchants Saving Bank. No. 791. Pay to Chas. Cleveland or order Twenty-five Dollars, ($25). W. W. Wright.” The bank paid to the defendant the amount called for in the check. When the case was called in the justice court defendant filed a motion to dismiss [349] for want of a sufficient statement of plaintiff’s cause of action, whereupon plaintiff filed the following statement, (omitting caption): “Plaintiff for his cause of action states that on the 18th day of November, 1908, at Moberly, Mo., plaintiff lent to defendant twenty-five dollars, which sum defendant agreed to pay him on the — day of December, 1908; that plaintiff has demanded payment of said sum from defendant, but no part thereof has been paid and the whole is now justly due plaintiff. Whereupon plaintiff prays judgment for twenty-five dollars, with interest from the 9th of March, 1910.” Upon the filing of the amended statement defendant filed a motion to dismiss because it was not an amendment of the statement theretofore filed, but a statement of a new independent cause of action; and because plaintiff failed to file any statement of his cause of action before process issued herein, as required by law. On appeal in the circuit court the motion to dismiss for the same causes was renewed which the court overruled, whereupon the parties went to trial which resulted in a judgment for plaintiff. The check filed with the justice before process was issued was in effect no statement at all. It did not evidence a loan or an indebtedness of any kind and under former decisions was. not a subject for amendment. [Brashears v. Stock, 46 Mo. 221.] But under section 3853, Revised Statutes 1899, now section 7413, Revised Statutes 1909, it is permissible to file a statement where none has been filed or where the statement is insufficient or defective it may be amended in the justice court before the jury is sworn or the trial commenced. Section 7413 was enacted for the purpose of liberalizing proceedings before justices of the peace and curing such defects as appellant is here complaining of. Affirmed. All concur.