Barr v. Blomberg

Ellison, J.

This case involving so trifling an amount has found its way to this court on defendant’s appeal. The first record entry of it is this:

“ Transcript of W. M. Lawson, docket.

“Change of venue from W. Z. Burton, J. P., in a case wherein JohnP. Barr, plaintiff, v. Henry Blomberg, defendant.

“Plaintiff filed October 10, A. D. 1887, account against the defendant for one and one-half days’ labor rendered threshing wheat, and orders a summons to issue, which is done and delivered to the constable and made returnable on the twenty-first day of October, A. D. 1889.

“W. M. Lawson, J. P.”

There was a verdict in justice’s court for plaintiff, and the defendant appealed to the circuit court where plaintiff again obtained judgment.

The account stated to have been filed was not among the papers, but the court permitted to be filed, as the account in suit, an account appearing to have been filed before W. Z. Burton, J. P., September 20, 1887. It was upon an amendment of this that the case was tried. There is nothing in the record showing any connection between Burton, J. P., and the justice who tried the cause.

The only place that Burton appears is at the heading of Justice ■ Lawson’s docket merely reciting “Change of venue from W. Z. Burton, J. P.” There is no statement of the change of venue in the transcript, nor is there any transcript whatever from Burton. If the cause was before Lawson on change of venue, when a question like the one before us is raised, it should appear by the transcript of the justice before whom the cause originated, if not also in the docket of the justice to whom the case is sent, that there was a- change of venue. And the original papers should be sent with a transcript of the proceedings to the justice before whom the case has been sent. R. S. 1879, secs. 2592, 2593. If we should concede that the requirement of this statute was waived by the voluntary appearance of the parties, we would then be compelled to look upon the action as though it originated before Lawson, for there is nothing in the record to show us to the contrary. If it origi nated before Lawson there was no account filed with him as is required by sections 2851, 2852, and therefore nothing to amend, and under authority of Peddicord v. Railroad, 85 Mo. 160, defendant’s motion to dismiss should have been sustained. The account which the circuit court permitted Burton to supply seems, on its face, not to have been the same upon which Lawson tried the case, for while Lawson’s docket states an account was filed October 10, the account received from Burton was endorsed by him as filed September 20.

The judgment is reversed, and the cause is remanded with directions that the circuit court dismiss the same.

All concur.