Borkowski v. Janicke
Missouri Court of Appeals
Appeal from Buchanan Circuit Court. — Hon. W. K. Amide, Judge.. (1) The court erred in overruling defendants’ motion to strike from the records plaintiff’s second amended petition. It introduced a new and entirely different cause of action from that tried before the justice, contrary to and in violation of the statute. E. S. 1909, sec. 7585; Clark v. Smith, 39 Mo. 498; Hans-berger v. Railroad, 43 Mo. 196; Brashears v. Strock, 46 Mo. 221; Slaughter v. Davenport, 82 Mo.
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Appeal from Buchanan Circuit Court. — Hon. W. K. Amide, Judge.. (1) The court erred in overruling defendants’ motion to strike from the records plaintiff’s second amended petition. It introduced a new and entirely different cause of action from that tried before the justice, contrary to and in violation of the statute. E. S. 1909, sec. 7585; Clark v. Smith, 39 Mo. 498; Hans-berger v. Railroad, 43 Mo. 196; Brashears v. Strock, 46 Mo. 221; Slaughter v. Davenport, 82 Mo. App. 654, and 151 Mo. 33; Bushnell y. Railroad, 126 Mo. App. 63. (2) A suit on open account and one on account stated are two…
1Opinion of the Court
TRIMBLE, J. —
This is a suit to recover a balance due on an account for groceries sold the defendants and used by them in their family. It originated in a justice court where judgment was rendered for *614plaintiff and an appeal was taken to the circuit court. Motions were there filed by defendants to make the petition more definite and certain, which being sustained, the plaintiffs, by leave of court, filed an amended petition in which they asked judgment for the same balance, as upon an account stated.
The defendants thereupon filed a joint motion to strike out the amended petition as a…
2Cases cited11 opinions
- Scovill v. GlasnerSupreme Court of Missouri · 1883
- Newton v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1913
- Cowell v. Colorado Springs Co.Supreme Court of Colorado · 1876
- McKeen v. Boatmen's BankMissouri Court of Appeals · 1898
- Newberger v. FriedeMissouri Court of Appeals · 1886
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3Cited by2 opinions
- Fashion Cleaners, Laundries Dyers v. De LongMissouri Court of Appeals · 1946
- Conkling v. Henry Quellmalz Lumber & Manufacturing Co.Missouri Court of Appeals · 1931