Stewart v. Van Horne
Missouri Court of Appeals
Appeal from Knox Circuit- Court. — Hon. Edwin R. McKee, Judge. (1) Tbe cause of action stated in plaintiff’s second amended petition is a departure from tbe cause of action stated in the original petition, and the court erred in overruling defendant’s motion to strike out such amended pleading. A petition can not be amended, over the objection of defendant, by the substitution of a different cause of action from that stated in the original petition.
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Appeal from Knox Circuit- Court. — Hon. Edwin R. McKee, Judge. (1) Tbe cause of action stated in plaintiff’s second amended petition is a departure from tbe cause of action stated in the original petition, and the court erred in overruling defendant’s motion to strike out such amended pleading. A petition can not be amended, over the objection of defendant, by the substitution of a different cause of action from that stated in the original petition. There are two tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action: first, whether…
1Opinion of the CourtGoode, J.
— Plaintiffs are real estate brokers and instituted this action to recover a commission from the defendant alleged to be due them for making a sale of his farm, pursuant to a written contract entered into between them and him on the tenth clay of September, 1900. The point made for a reversal of the judgment is that the second amended petition, on which the case was tried, was a departure — that it substituted a new cause of action for the one stated in the original petition. When said amended petition was filed, appellant moved to strike it out for that reason and, his motion being…
2Cases cited9 opinions
- Hardin v. BoydSupreme Court of the United States · 1885
- Dudley v. Congregation of the Third Order of St. FrancisNew York Court of Appeals · 1893
- Lottman v. BarnettSupreme Court of Missouri · 1876
- Culp v. SteereSupreme Court of Kansas · 1892
- Ross v. Cleveland & Aurora Mineral Land Co.Supreme Court of Missouri · 1901
4 more not listed; retrieve them via the Exa API.
3Cited by14 opinions
- Cytron v. St. Louis Transit Co.Supreme Court of Missouri · 1907
- Walker v. Wabash RailroadSupreme Court of Missouri · 1906
- Banner Lumber Co. v. RobsonMissouri Court of Appeals · 1914
- Coleman v. Himmelberger-Harrison Land & Lumber Co.Missouri Court of Appeals · 1904
- Moliter v. Wabash RailroadMissouri Court of Appeals · 1914
9 more not listed; retrieve them via the Exa API.