Bick v. Dixon
Missouri Court of Appeals
Appeal from Monroe Circuit Court. — Eon. David E. Eby, Judge. (1) The amended petition was not a departure. “There are two tests which determine whether a second petition is an amendment or new cause of action. First, whether the same evidence will support both petitions; and, second, whether the same measure of damages will apply to both. If these questions are answered in the affirmative it is an amendment; if in the negative, it is a substitution.”
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Appeal from Monroe Circuit Court. — Eon. David E. Eby, Judge. (1) The amended petition was not a departure. “There are two tests which determine whether a second petition is an amendment or new cause of action. First, whether the same evidence will support both petitions; and, second, whether the same measure of damages will apply to both. If these questions are answered in the affirmative it is an amendment; if in the negative, it is a substitution.” Liese v. Meyer, 143 Mo. 547; Burnham, v. Tillery, 85 Mo. App. 453; Grigsby v. Barton County, 169 Mo. 221; B'oecker v. Milling Company, 101 Mo.…
1Opinion of the CourtGoode, J.
This appeal was taken from a judgment on a motion to strike out an amended petition, which motion was sustained on the ground the amendment substituted a new cause of action. Plaintiff having elected to stand on the amended petition, judgment was rendered against him, dismissing his action and for costs.
The first petition alleged plaintiff had obtained judgment before a justice of the peace May 22, 1897,- for $84.30, against defendant, with eight per cent interest to *705compound annually, and for costs; that a transcript of said judgment was filed in the office of the clerk of the circuit court…
2Cases cited6 opinions
- Liese v. MeyerSupreme Court of Missouri · 1898
- State ex rel. South Missouri Pine Lumber Co. v. DearingSupreme Court of Missouri · 1904
- Campbell v. JohnsonSupreme Court of Missouri · 1869
- Rush v. BrownSupreme Court of Missouri · 1890
- Armstrong v. CrooksMissouri Court of Appeals · 1900
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- State Ex Rel. Standefer v. EnglandMissouri Court of Appeals · 1959
- Papenberg v. PapenbergMissouri Court of Appeals · 1956
- Frye v. WarrenMissouri Court of Appeals · 1915