Legal Opinion

Johnson v. Loomis

Missouri Court of Appeals

Decided May 16, 1892PublishedCited by 2 opinions

Appeal from the Macon Circuit Court. — Hon. Andrew Ellison, Judge. (1) The court should have sustained the defend.-ant’s demurrer to plaintiff’s evidence. With all the liberality extended to statements filed before a justice, it has never been permitted to sue on one cause of action, and recover on another and different cause of .action. R. S. 1889, sec. 6138; Penninger v. Reiley, 44 Mo.

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Appeal from the Macon Circuit Court. — Hon. Andrew Ellison, Judge. (1) The court should have sustained the defend.-ant’s demurrer to plaintiff’s evidence. With all the liberality extended to statements filed before a justice, it has never been permitted to sue on one cause of action, and recover on another and different cause of .action. R. S. 1889, sec. 6138; Penninger v. Reiley, 44 Mo. App. 255. (2) A suit cannot be brought on an open account, and the recovery had on a written contract covering the same subject-matter. This proposition needs no citation of authorities. It is elemental. (3)…

1Opinion of the CourtSmith, P. J.

— This was a suit brought before a .justice of the peace. The statement of the plaintiff’s cause of action alleged that “the defendants are indebted to plaintiff in the sum of $10 for work and labor done as a coal miner during the months of February and March, 1890,” etc. The case was removed by appeal to the circuit court where there was a trial *144which resulted in a judgment for plaintiff for $3.33 1-3, to reverse which defendants have appealed.

The defendants' first ground of appeal is that the-statement of the plaintiff's cause of action is insufficient. It was quite sufficient to advise the…

2Cases cited5 opinions

  1. Butts v. PhelpsSupreme Court of Missouri · 1883
  2. State v. LoweSupreme Court of Missouri · 1887
  3. Lemon v. LloydMissouri Court of Appeals · 1891
  4. Fleischmann v. MillerMissouri Court of Appeals · 1889
  5. Gregg v. DunnMissouri Court of Appeals · 1889

3Cited by2 opinions

  1. Boyle v. ClarkMissouri Court of Appeals · 1895
  2. Swift v. JohnsonMissouri Court of Appeals · 1913

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