Horton v. Kansas City, Ft. S. & G. R. Co.

• Decision Date: 23 May 1887
• Parties: R. C. HORTON, Respondent, v. KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

26 Mo.App. 349

R. C. HORTON, Respondent, v. KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 23, 1887

APPEAL from Barton Circuit Court, HON. CHARLES G. BURTON, Judge.

Affirmed.

The case is stated in the opinion.

WALLACE PRATT and C. B. MCAFEE, for the appellant.

1. There are but two points to be considered in this case. (1) Can the return of the sheriff made on the notice of appeal be impeached, as was done in the court below? That the return of an officer of the service of process is conclusive between the parties to the suit, is so well established by repeated decisions of the supreme court of this state, that the question is no longer debatable, and it would seem that a citation of these decisions, to-wit Hallowell v. Page (24 Mo. 590); Page v. Page & Bacon (24 Mo. 595); Delingern, Adm'r, v Higgins (26 Mo. 180); Reeves v. Reeves (33 Mo 28); Jeffries v. Wright (51 Mo. 215); Stewart v. Stringer (41 Mo. 400); and so on, from the first report to the last decision on the question, ought to be the decision of this case, and is so unless an exception is made in cases of services of notice. Under our statutes, a judgment of the justice of the peace is final if an appeal is not taken on the same day, unless the appellant shall bring the appellee into the circuit court by a notice to him that an appeal has been taken from the judgment therein specified, and this appeal is not triable until such notice is given ten days before the first day of court, unless by the voluntary appearance of the appellee, and if such notice is not given ten days before the first day of the second term, the statute provides that the judgment of the justice shall be affirmed, or the appeal dismissed. Gen. Stat., p. 511, sects. 3055, 3056, 3057. This notice, then, is the process by which the opposite party is brought into court. There is no other way to force another trial. It is just as important as a summons in the first instance, and no greater evils would follow by permitting the return of an officer on a summons to be contradicted, than would follow the contradiction of his return of the service of a notice of an appeal. The statute (sect. 3055) provides that the notice of appeal may be served in like manner as an original writ of summons (certainly contemplating a service by an officer ), or by delivering a copy of the same to the appellee by any person competent to be sworn as a witness, etc.

II. By reference to the complaint and the judgment of the justice, it will be seen that, upon the first count, the issues are found for defendant, and on the second count the issues are found for plaintiff. And appellant calls attention of the court to the insufficiency of the second count, upon which the judgment of the justice is based. The allegations in this count against defendant are in these words: " Said defendant has improperly constructed its fences and cattle guards, and placed the same in such an angle that cattle and horses getting on said road and right of way, at the crossing aforesaid, were, and are, liable to great and unnecessary danger and difficulty, and are hindered and prevented from escaping from approaching trains." There is no allegation that the road is not fenced, or that cattle guards are not maintained. There is no allegation that the fences or cattle guards are not sufficient to " prevent cattle and horses from getting on the railroad. " But the allegations are, " that cattle and horses, getting on the road and right of way at the crossing, are liable to great and unnecessary danger and difficulty, and are hindered and prevented from escaping from approaching trains." It is curious that stock can get on a crossing of a public highway, and are there hindered by cattle guards from getting off a crossing when a train approaches. The fence and cattle guards do not run on the public highway, nor across it, and this horse was killed on the highway at the crossing. Gilman v. Railroad, 13 Am. & Eng. R. R. Cases, 540; S. C., 62 Ia. 302. The complaint is not framed under any statute. There is no allegation of any omission of any duty; " so improperly constructed its fences and cattle guards, and placing them at such an angle that cattle and horses on" --what? Not on the part of the railroad required to be fenced and cattle-guarded--but on the road and right of way, at the crossing of the public highway, where the law does not require or permit fence, or cattle guards to be placed. No carelessness or unskilfulness is alleged or charged. There is no cause of action whatever stated in the petition.

BULER & TIMMONDS, for the respondent.

I. There are but two questions raised in this case, viz: (1) Is the statement of the sheriff, indorsed on the back of the notice of appeal, conclusive? (2) Is the first count in plaintiff's statement sufficient, after verdict and judgment, no motion in arrest having been made? A notice of appeal is not a writ or process; nor is the statement of the sheriff thereon a return. A writ is an instrument in writing running in the name of the state, and issued out of a court of justice, directed to a sheriff or other ministerial officer, or to the party intended to be bound by it, and commanding some act therein mentioned to be done. Burrill's Law Dictionary. Process is a generic term for writs of the class called judicial. Burrill's Law Dictionary. A return is the answer made in writing by a sheriff, or other officer, to the court out of which a writ directed to him has been issued, stating what he has done in execution of it, or how he has executed it. Burrill's Law Dictionary. If the process is not what is called returnable process, or, in other words, if it be process upon which the officer is not required to certify his doings, his return will not be evidence. 2 Phillips on Evid. (Cowen & Hill's and Edward's notes), 367, and citations. To know whether a return is competent evidence or not, we must look primarily to the process itself, and to the law regulating the officer's duty thereon. 2 Phillips on Evid. (Cowen & Hill's and Edward's notes), 367, and citations. There is no law in this state making it the official duty of any constable or sheriff to serve notices of appeal; nor, if such officer does serve it, is there any law making it his official duty to make return of his proceedings. The appellate courts of Missouri recognize these exceptions to the general rule. Hallowell v. Page, 24 Mo. 593. At most, an officer's return on a notice is only prima facie evidence of the fact and date of service. Towner v. Remick, 19 Mo.App. 209.

II. The first count in plaintiff's complaint is sufficient. " No formal pleadings, upon the part of either plaintiff or defendant, shall be required in a justice's court." Rev. Stat., sect. 2851; Iba v. Railroad, 45 Mo. 469; Minter v. Railroad, 82 Mo. 128. No judgment will be reversed " by reason of the following imperfections, omissions, defects, matters or things, or any of them, namely:" Rev. Stat., sect. 3582. " No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court." Rev. Stat., sect. 3774. In this case the defendant appeared and participated in the trial before the justice; also appeared to the motion to affirm in the circuit court. In neither court did the defendant raise any objection to the sufficiency of the complaint. No motion in arrest was filed, and this point was not brought to the attention of the trial court. Newton v. Miller, 49 Mo. 298; Hotel Co. v. Sigeman, 53 Mo. 176; Sweet v. Maupin, 65 Mo. 65; Bank v. Allen, 68 Mo. 474.

PHILIPS P. J.

This action arose in a justice's court. The plaintiff had judgment, from which the defendant took an appeal, in vacation, within ten days after the rendition of judgment. In such case it is made the duty of the appellant to serve notice on the appellee of the taking of such appeal. And if such notice be not given, within ten days next before the commencement of the second term of the appellate court, the judgment of the justice shall be affirmed by the appellate court on the motion of the appellee. At such second term the appellee made such motion. In opposition thereto the appellant offered, and read in evidence, a notice in due form, dated August 13, 1885, on which was the following indorsement:

" STATE OF MISSOURI, ) SS

County of Barton. )

Served this notice in the county of Barton, state of Missouri, by delivering to the within named R. C. Horton an exact and true copy of this notice, on the fifteenth day of August, 1885.

S. P. FINLEY, Sheriff.

Per A. E. WARDICK, Deputy Sheriff."

Against the objection of appellant the plaintiff testified, " that the said notice of appeal was never served on him; but that a notice, similar in form, but in a case of H. E. Best against defendant, was served on him; but that no notice of appeal whatever was served on him in this case, nor did he ever see any notice of appeal in this case."

On this state of the proofs the court sustained the motion, and rendered judgment of affirmance accordingly. Defendant has appealed to this court. The single question presented for determination is,...