Opinion
May 16, 1950.
Action by T.T. Burchell against Grace Grubbs and others, to recover the sum of $85.15. The defendants in the action in the Quarterly Court filed an appeal to the Clay Circuit Court. The plaintiff filed an amended petition setting out in full an option contract on which he had based his claim for the amount he sought to collect in the Quarterly Court, and filed a second amended petition wherein he set up his claim to an interest in realty covered in the option agreement. The Circuit Court, Clay County, Ray C. Lewis, J., dismissed the amended petitions and entered judgment in favor of Burchell for $64.50, and he appealed. The Court of Appeals, Cammack, J., held that on an appeal from as inferior court to a Circuit Court the cause of action must be the same as that expressed in the original action, and no new cause of action may be relied on, nor may the original action be enlarged.
Motion for an appeal overruled, and the appeal denied.
T.T. Burchell and J.D. White for appellant.
William Rice and Lewis Weaver for appellees.
Overruling motion for appeal, and denying appeal.
The appellant, T.T. Burchell, has filed a motion for an appeal from a judgment dismissing his petition as amended in the Clay Circuit Court. Burchell filed an action in the Quarterly Court wherein he sought to recover the sum of $85.15. The appellees, defendants in the action in the Quarterly Court, filed an appeal to the Clay Circuit Court. Burchell filed an amended petition setting out in full an option contract on which he had based his claim for the amount he sought to collect in the Quarterly Court. He filed a second amended petition wherein he set up his claim to an interest in the land covered in the option agreement. The amended petitions were dismissed and judgment was entered in favor of Burchell in the Circuit Court for $64.50.
Section 726 of the Civil Code of Practice provides; "Appeals; when stand for trial and how tried. Appeals shall be docketed and stand for trial as ordinary actions, and shall be tried anew, as if no judgment had been rendered."
Since the case of Burbage v. Squires, 3 Metc. (60 Ky.) 77, it has been held that, upon an appeal from an inferior court to a circuit court, the cause of action must be the same as that expressed in the original action. No new cause of action may be relied upon, nor may the original action be enlarged.
Wherefore, the motion for an appeal is overruled and the appeal is denied.