Butler v. Ash

Puller, J. Plaintiff sued originally in justice court, and recovered judgment for $64.75 as reasonable compensation for keeping and feeding certain cattle at the special instance and request of the defendant, from the 21st day of November, 1891, to the 16th day of January, 1892. Prom that decision the defendant appealed to the circuit court, upon both questions of law and fact, where the case was tried on an amended complaint, and again resulted in a judgment in favor of plaintiff, from which the defendant appeals to this court. The summons and complaint in justice court and the amended complaint in circuit court are entitled in the name of 612 this plaintiff against “B. C. Ash, Sheriff of Hughes County,” but counsel for appellant maintain that by said amended complaint the defendant was charged in his representative capacity as sheriff, and upon an implied promise to pay a reasonable sum for the care and keeping of the cattle, instead of a specific amount agreed upon, and constituting the sole consideration for an express contract or account stated, which was made the basis for the cause tried in justice court, and which resulted in a judgment against the defendant in his individual capacity. The point urged and contended for is that the circuit court was' without jurisdiction to allow the amendment. ’ A case appealed from a justice of the peace to the circuit court for a new trial on both questions of law and fact is tried therein as an original action, according to the usual procedure, so far as applicable; and it is, we think, clearly within the general powers of such courts to permit on appeal, in the interest of justice, such timely amendments of the oral or «written pleadings filed with the justice or entered in his docket as he might have allowed, and which appear to be essential to an orderly trial de novo. Comp. Laws, § 6136. From a careful comparison of the pleadings, we are disposed to conclude that the amended complaint introduces no additional or different cause of action, as no change appears to have been affected in the amount for which judgment is demanded, or in the nature of the claim, otherwise than by an allegation in the amended complaint that the defendant was a sheriff, and in his official capacity seized the battle under a writ of attachment in a certain action, and thereafter, just as alleged in justice court, delivered the same to this plaintiff, a stranger to that proceeding, who, in the capacity of a bailee of the property, fed and cared for the same at the instance and request of the defendant. Whether the word ‘ ‘sheriff, ” following defendant’s name in the summons and the caption of both the original and the amended complaint, is merely descriptive of the person, or, as a matter of law sufficient to bind him in his representative ca 613 pacity as sheriff, when supplemented by proper issuable averments, need not now be determined, as the complaint was not materially al tered, and no resistance was offered in either court to respondent’s cause of action upon its merits, and both trials resulted in a judgment against appellant in his personal capacity. Not being called upon to determine the question, we cite without comment the following cases to'the. effect that a complaint against a defendant in his. individual capacity may be amended so as to charge him in his representative capacity: McDonald v. Ward, 57 Conn. 304, 18 Atl. 51; Tighe v. Pope, 16 Hun. 180; Lucas v. Pittman, 94 Ala. 616, 10 South. 603; Eddy v. Powell, 1 C. C. A. 448, 49 Fed. 814; Stearns v. Wright, 50 N. H. 293. When a case is brought from an inferior court to an intermediate appellate tribunal for a trial de novo on both questions of law and fact, amendments which neither change the parties nor the issues nor introduce new causes of action are certainly allowable, and, as the amendment granted in this case is clearly within the foregoing rule, we do not, at this time, commit ourselves to the doctrine of the following cases, in which amendments were allowed under statutes similar to ours, which appear to be comprehensive and liberal enough to sustain the judgment appealed from, were we to assume the existence of a state of facts as favorable to appellant as the theory of his counsel would justify: Hutchinson v. Tucker, 124 Mass. 240; Beattie v. Hill, 60 Mo. 72; State v. Preston, 34 Wis. 675; Nichols v. City of Duluth, 40 Minn. 388, 42 N. W. 84; Jackson v. Covert’s Adm’rs 5 Wend. 139; Newberger v. Friede, 23 Mo. App. 631. It clearly appears from the evidence, that respondent, as alleged in his complaint, kept and cared for the cattle at the special instance and request of appellant, who did not before the justice nor at the trial on appeal, attempt in any capacity to deny liability, and the technical grounds for a reversal relied upon by his counsel cannot be entertained. The judgment appealed from is affirmed.