
    Henry Hester et al v. Samuel Graham et al.
    Action — Amended Petition Changing Cause of Action — Summons On.
    The amended petition had the effect of changing the action from a suit founded on the alleged parol promise, to one on three notes which had then matured. Held to be virtually bringing a new suit on the notes.
    Same — Process—Service.
    The judgment rendered on the same day without the service of pz-ocess on the amended petition was erroneous.
    APPEAL FROM MARSHALL CIRCUIT COURT.
    February 20, 1869.
    
      C. D. Smith, for appellant.
    
    
      Gilbert, Dr. Holland, for appellee.
    
   Opinion of the Court by

Judge Hardin:

As we construe the original petition, it seeks a recovery on the agreement alleged in the second paragraph to have been made by the defendants, that they would pay the first note and also rents for the use of the mills and damages which had been sustained by the plaintiffs in consequence of defendants’ negligence.

The amended petition filed on the 23rd of August had the effect of changing the action from a suit founded on the alleged parol promise to one on the three notes which had then matured, according to the original contract. This was virtually bringing a new suit on the notes; and the judgment rendered on the same day without the service of process on the amended petition, not being authorized by the original petition, but inconsistent with it, was in our opinion erroneous.

Wherefore, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.  