
    Peter Schaefer, Respondent, v. William Green, Appellant.
    St. Louis Court of Appeals,
    December 15, 1896.
    1. Account: amendment, sufficiency of. In. a suit on account, an amendment of an item of the account “To bill rendered, $138.68,” so as to read “To bill rendered and account stated thereon, $138.68,” where plaintiffs evidence was that, prior to the date of such item, he had performed work and furnished materials on defendant’s house, that he and defendant had a settlement of their accounts, and that defendant agreed that a balance — the amount of such item, was due from him, was sufficient to prove “an account stated” as to such item; and a complaint that the evidence did not prove the essentials of “an account stated,” if it had any force, might be disposed of by treating the account as containing two causes of actions, no objection being made to the commingling of independent causes of action, or that the verdict was a general one; or such item might be considered as an item in the new account, making the action one on open account, of which such item is the balance due on an account stated.
    2. -: -: FAILURE TO RENEW OBJECTION TO, ON MOTION FOR new trial: waiver. Where an objection to an amendment of a complaint is not renewed on motion for new trial, the objection and exception will be considered as having been waived.
    
      3. -: justice’s court: change of yenue: imperfect transcript: jurisdiction. Oñ a change of venue, in a ease brought before a justice, where the justice to whom the ease was sent had jurisdiction of the class of cases to which the case belongs, and the amount was within his jurisdiction, and the parties voluntarily appeared before him and without objection went to trial, an objection here to his jurisdiction and that of the circuit court, on the ground that the justice before whom the suit was instituted failed to certify to the transcript, is without any merit.
    
      Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.
    Affirmed.
    
      Webster & Webster for appellant.
    Tlie plaintiff’s action was upon an account stated, but the evidence failed to disclose the necessary elements of the account stated. The judgment is not supported by any evidence sufficient, under the instructions, to sustain it. Reinhart v. Hines, 51 Miss. 344; Hanson v. Jerome, 54 N. Y. 408; Road v. Kimmel, 58 Mo. 83.
    The amendment of the statement should not have been permitted. “Balance due” is insufficient, unless something is added to show for-what it is due. Patterson v. Luts, 1 Mo. App. 133; Sivarts v. Nicholson, 65 Mo. 508; Rosenburg v. Boyd, 14Mo. App. 429; Brashear v. Strode, 46 Mo. 221.
    The proceedings before the justice who rendered the judgment and in the circuit court were coram non judice. The justice could only have acquired jurisdiction by the filing of a transcript upon the change of venue. The instrument filed was not a transcript, because not certified to by the justice who granted the change of venue. R. S. 1889, secs. -6241, 6242.
    The appearance of defendant might constitute a waiver of lack of jurisdiction of the person, but jurisdiction of the subject-matter must exist or be conferred by law. Collier v.' Wilson, 56 Mo. App. 420.
    
      
      James B. Kinealy for respondent.
    Plaintiff’s action was not based upon an account stated, but an open account, the first item of which was a balance due on an account stated, which did not prevent it from being incorporated in and made part of the account sued on. Estes v. Shoe Co., 54 Mo. App. 543.
    There is no question as to the amendment of the statement saved for review by this court. That matter was not referred to by defendant in his motion for new trial. Moreover, the amendments were authorized by statute (sec. 6347). The objection by defendant to the first item of the account was not an objection to the account as a whole. Reweg v. Heitcamp, 20 Mo. 568. See, also, Newberger v. Eriede, 23 Mo. App. 631; Hanson v. Jones, 20 Id. 595; Sprague v. Follett, 90 Mo. 547; Rathburnv. Teeter, 25 Mo. App. 283.
    After appearing before Justice Spaulding, taking a change of venue, and then before Justice Hennessy and trying the case on its merits, and appealing to the circuit court and again trying the case on its merits, it is too late for appellant to say the judgment was rendered without jurisdiction of the subject-matter. State v. Weatherby, 45 Mo. 17; Rosenheim v. Hartsoclc, 90 Id. 365; Hope v. Blair, 105 Id. 93; Musiclc v. R’y, 114 Id. 309.
    There is nothing in the point that Justice Hennessy had no jurisdiction because the transcript was not certified to. Sec. 6339, R. S. 1889; Barn v. Blomberg, 37 Mo. App. 604; Collier v. Wilson, 56 Id. 420.
   Biggs, J.

This is an action on an account. The following statement of the account was filed before the justice:

Mr. William Green bought of P. Sehaefer & Co., Plumbers, Gas and Steam Pipe Fitters:
1893.
Sept. 9, to bill rend...................’.............. $138 68
May 5th, by cash...............................$25 00
May 24th, by cash.................................. 25 00
July 6th, by cash..................'................. 25 00 75 00
To balance..................................... $63 68
Mov. 3rd, 23 ft. 3-8 pipe..................................... $ 1 15
“ “ 2-1-4 in. burner cock................................. 70
5 ft. 1-4 in. pipe.................................... 25
“ “ 1-3-8 stop cock..................................... 50
“ “ 6 fittings............................................ 35
“ “ 2 hours time .............. 1 50
Nov. 11, 3 ft. 1-1-4 in. waste pipe........................... 1 05
“ “ 2 lbs. solder....................................... 50
*' “ 2 lbs. lead.......................................... 10
“ “ 6 hours time changing soil pipe....................... 5 50
Jan. 27, to rep. gas leaks and time.......................... 1 50
April 28, to rep. closet, new washers, new float, and taking down fixtures and time...............................■........ 2 75
$79 53

When the ease reached the circuit court the first item of the account was amended by adding the words “and account stated.”' At the trial the item was further amended by adding the word “thereon,” making the item read “to bill rendered and account. stated thereon $138.68.” The defendant objected and excepted to the last amendment. The cause was submitted to the court without a jury and the judgment was for the balance sued for with interest added. The defendant has appealed.

The defendant’s first complaint is that the evidence does not prove the necessary elements of “an account stated. ” This is upon the theory that the action can only be treated as one on an account stated. The defendant’s contention is well founded as to the last items of the account, beginning with that of November 3, 1893, but it is unfounded as to the other charge of date September 9. Concerning that item the plaintiff’s evidence was to the effect that prior to that date he had performed work and furnished plumbing materials on the defendant’s house; that plaintiff and defendant met and had a settlement of their accounts, and that the defendant agreed that a balance of $138.68 was due from him, which he agreed to pay. This evidence was sufficient to prove “an account stated” as to that item. If there is any force in the defendant’s objection, it can be disposed of by treating the account as containing a statement of two causes of action, the ‘defendant having made no objection to the commingling of independent causes of action, or that the verdict was a general one. Or the item of September 9 may be regarded as an item in the new account (Estes v. Brown, 54 Mo. App. 543), which would make the-action entirely one on open account, of which the first item is the balance due on an account stated. In any event we can not conceive how the defendant was prejudiced.

The objection to the amendment of the complaint was not renewed in the motion for a new trial, therefore the objection and excepfton as £0 that must be considered as having been waived.

The case was first instituted before Justice Spaulding. The defendant appeared before him and applied for a change of venue. The case was sent to Justice Hennessy. Spaulding sent the original papers to Hennessy, but he failed to certify to the transcript. Hennessy issued a new summons, which was served. In obedience to it the defendant appeared and went to trial. Judgment went against hjm and he appealed to the circuit court. The point is now made by his counsel that by reason of the imperfect transcript Hennessy acquired no jurisdiction of the case, and therefore the circuit court acquired none on appeal. As Hennessy had jurisdiction of the class of cases to which this belongs, aucl the amount was within his jurisdiction, and as the parties voluntarily appeared before him and without objection went to trial, it could make no-difference that the transcript 'of Spaulding’. was defective or that he had furnished none at all. ' But if there could be any objection on that scoi’e, it was obviated by the action of Hennessy in issuing a new summons which was duly served on the defendant, and in obedience to which he appeared to the action. The action could .very well be treated as having been reinstituted before Hennessy. We therefore conclude that there is likewise no merit in this objection.

Finding no reversible error in the record, we will affirm the judgment. It is so ordered.  