Estes v. Fry
Supreme Court of Missouri
Appeal from Eike Circuit Court. — Hon. Demid H. Eby, Judge. (1) Under tbe pleadings and the evidence, the court should have given the declaration of law asked for' by defendants, and its verdict and judgment should have been for defendants. Eirst. The original suit was an ordinary action at law on a promissory note. The so-called amended petition was not an amendment, but a complete change of cause of action.
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Appeal from Eike Circuit Court. — Hon. Demid H. Eby, Judge. (1) Under tbe pleadings and the evidence, the court should have given the declaration of law asked for' by defendants, and its verdict and judgment should have been for defendants. Eirst. The original suit was an ordinary action at law on a promissory note. The so-called amended petition was not an amendment, but a complete change of cause of action. It was changed from an action at law to one in equity. • The same proof would not sustain both. Scoville v. Clasner, 79 Mo. 449; Lampldn v. Collier, 69 Mo. 170; Maloney v. Building…
1Opinion of the CourtMarshall, J.
This is a suit begun on April 3, 1890, upon a promissory note, dated March 10, 1871, for one thousand dollars, with ten per cent interest per annum from date, the interest if not paid to be compounded annually and added to the principal, made by Jacob Ery, to the order of James Wigginton, and by him indorsed to Eielden Estes. Ery died *76before! the institution of the suit and the action is against his executors. Estes died since the appeal was taken, and the action has been revived in the name of William P. Stark, his executor. The petition is in two counts. The first count is an action at law…
2Cases cited10 opinions
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