Barnes v. Metropolitan Street Railway Co.
Missouri Court of Appeals
Appeal from Jackson Circuit Court. — Hon. Hermann Brumbach, Judge. (1) The plaintiff could not join in the same petition causes arising in tort and also in contract. I-Ience under the pleadings and the evidence there could be no recovery. R. S. 1899, sec. 593. This was brought to the attention of the court in defendant’s demurrer to the evidence, and was timely.
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Appeal from Jackson Circuit Court. — Hon. Hermann Brumbach, Judge. (1) The plaintiff could not join in the same petition causes arising in tort and also in contract. I-Ience under the pleadings and the evidence there could be no recovery. R. S. 1899, sec. 593. This was brought to the attention of the court in defendant’s demurrer to the evidence, and was timely. Southworth Co. v. Lamb, 82 Mo. 247. (2) That when plaintiff dismissed as to the first count of his petition, the court was without jurisdiction to render judgment on the second count. R. S. 1899, sec. 1674, subdivs. 2, 3; R. S. 1899,…
1Opinion of the CourtJohnson, J.
-The petition, when filed, contained two counts. An action in tort was pleaded in the first and one on contract in the second. No demurrer was filed, but defendant answered to the merits. During the trial plaintiff dismissed the cause of action stated in the first count. At the conclusion of all the evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was refused. Plaintiff recovered judgment on the second count in the sum of $26, the amount prayed for in the petition and defendant appealed.
It is argued by defendant that the circuit court had no…
2Cases cited14 opinions
- Smith v. County of ClarkSupreme Court of Missouri · 1873
- Brown v. WoodySupreme Court of Missouri · 1877
- House v. LowellSupreme Court of Missouri · 1870
- Southworth Co. v. LambSupreme Court of Missouri · 1884
- Sumner v. RogersSupreme Court of Missouri · 1886
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3Cited by5 opinions
- State Ex Rel. Adler v. DouglasSupreme Court of Missouri · 1936
- Howell v. ReynoldsSupreme Court of Missouri · 1952
- Blackmer & Post Pipe Co. v. Mobile & Ohio RailroadMissouri Court of Appeals · 1909
- Knight v. Quincy, Omaha & Kansas City RailroadMissouri Court of Appeals · 1906
- Peycke Bros. Commission Co. v. DavisMissouri Court of Appeals · 1924