Wenzell v. Erath , 1892 Mo. App. LEXIS 124 ( 1892 )

Smith, P. J.

Plaintiff sued the defendant before a justice of the peace on an account for goods sold and delivered, amounting to $176. The defendant filed a counterclaim amounting to $200.39. The case was removed by appeal to the circuit court where the plaintiff had leave to amend his account by adding thereto three items for labor and materials furnished, amounting to $8.

At the trial the defendant objected to the introduction of any evidence as to the three items in the plaintiff ’s account just mentioned, on the ground that they were not contained in the statement upon which the cause was tried before the justice, which objection being overruled, - defendant duly excepted. The plaintiff’s account, except as to the items added thereto by the amendment, was admitted. The plaintiff gave the defendant credit on his account for the sum of $110.39 of the amount of the counterclaim of the latter. The case without instructions was submitted to the jury on the evidence adduced, whose verdict was for the plaintiff for $73.61. The defendant filed a motion for a new trial pending which the plaintiff entered a remittitur in the sum of $8, the amount of the three disputed items of his account. The court thereupon tendered judgment on the verdict for $65.61, and to reverse which defendant has appealed.

It may be that under the provisions of the statute, Revised Statutes, sections 6345, 6347, it was improper to allow the amendment of plaintiff’s statement or the introduction of any evidence in support thereof, which we do not wish to be understood as' deciding. Sprague v. Follett, 90 Mo. 547; Clark v. Smith, 39 Mo. 498; Hansberger v. Railroad, 43 Mo. 196; Beattie v. Hill, 60 Mo. 72; Thieman v. Goodnight, 17 Mo. App. 429. Nor is it necessary that we should so decide one way or the other, since, if the action of the court was error, it was manifestly rendered harmless by the remittitur.

We are positively forbidden by the statute to reverse a judgment of any court unless we believe that the error committed materially affects the merits of the action. R. S., sec. 2302. It may be further observed that the rule is now well settled in this state that if the party appealing would have the cause reviewed he must ask declarations of law of the lower "courts; if he does not do so, and there is any evidence to support the' verdict, the appellate court will affirm the judgment. Tyler v. Larimore, 19 Mo. App. 445; Kalbaum v. Roepke, 27 Mo. 161; Easly v. Elliott, 43 Mo. 289; Cunningham v. Snow, 82 Mo. 587; Harrington v. Snow, 80 Mo. 270; Thies v. Gabbe, 88 Mo. 146; Taylor v. Cayce, 97 Mo. 242; Coquard v. Werne, 100 Mo. 137.

As there was evidence to support the verdict and no instructions, it follows that under the rule just mentioned it inevitably follows that the judgment must be affirmed.

All concur.