Asher v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 07 June 1886
• Citation: Asher v. St. Louis, Iron Mountain & Southern Railway Co., 1 S.W. 123, 89 Mo. 116 (Mo. 1886)
• Parties: Asher v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant
• Court: Missouri Supreme Court

1 S.W. 123

89 Mo. 116

Asher v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant

Supreme Court of Missouri

June 7, 1886

Appeal from Butler Circuit Court.-- H. H. Bedford, Esq., Special Judge.

Affirmed.

Geo. H Benton for appellant.

(1) There was no evidence whatever upon which the court could have legally found a judgment for the plaintiff.Wade v Railroad,78 Mo. 362;Matson v. Railroad,80 Mo. 229;Barnett v. Railroad,68 Mo. 65;Thompson v. Railroad,74 Mo. 560;Morris v Railroad,79 Mo. 367;Fitterling v. Railroad,79 Mo. 504;Nance v. Railroad,79 Mo. 196.(2) Because the evidence showed that the plaintiff was not the real party in interest, and had no interest in the judgment rendered.R. S., 1879, sec. 3462;Wallen v. Railroad,74 Mo. 521;Weise v. Gerner, 42 Mo. 527.

S. M. Chapman for respondent.

(1)Plaintiff's statement was sufficient.If defective, it was in form only.Defendant's motion to strike out would not reach formal defects, as it did not specify the defects.R. S., sec. 3557;Green & Myer's Mo.Prac., secs. 950, 952.The "subject matter" was the right to recover under section 809, Revised Statutes, for stock killed by defendant.This was within the jurisdiction of the justice.As to requisites of motions to strike out, seePatterson v. Hollister,32 Mo. 478;Pearce v. McIntyre,29 Mo. 423;O'Conner v. Koch,56 Mo. 253.(2)[a] The demurrer was also properly overruled.R. S., sec. 3515; Bliss on Code Pl. 412;Green & Myer's Mo.Prac. 888;Otis v. Bank,35 Mo. 128;Christal v. Craig,80 Mo. 371;Mulholland v. Rapp,50 Mo. 42;Mooney v. Kennett,19 Mo. 551.[b] The defect of uniting in one count separate and independent causes of action, which could have been properly united in the same suit can be reached only by motion to strike out the objectionable parts.R. S., sec. 3512;Bass v. Comstock,38 N.Y. 21;Green & Myer's Mo.Prac., sec. 935;Mulholland v. Rapp, supra;Otis v. Bank,35 Mo. 128.[c] The complaint that the petition does not state facts sufficient to constitute a cause of action applies only to the substance of the pleading and does not reach defects only formal.1 Chit.Pl.[10 Am. Ed.] 663;Gould's Pl., chap. 9, secs. 15, 16, 19, 21;Story'sEq. Pl. sec. 455;Cooper'sEq. Pl. 118.[d] Upon the overruling of the demurrer, the defendant filed answer upon the merits.This was a waiver of the demurrer even had it been well taken.Board v. Hackman, Mo. 246;Ware v. Johnson et al.,55 Mo. 504;Pickering v. Miss. Valley Tel. Co.,47 Mo. 460;Green & Myer's Mo.Prac., secs. 894, 897, 898;Campbell v. Wilcox,10 Wall. 421;Fuggle v. Hobbs,42 Mo. 537;Young v. Martin,8 Wall. 359.[e] The complaint urged to plaintiff's amended statement in the circuit court is answered in Rowland v. Railroad,73 Mo. 619; and the objection to the jurisdiction of the circuit court, the defendant having appeared and gone to trial, is settled in Reddick v. Newburn,76 Mo. 423.The objection that the evidence was insufficient is frivolous.The case was fully proven.Whether the evidence was or was not sufficient was for the trial court, and its finding will not be disturbed on appeal.Garneau v. Herthel,15 Mo. 191;Gillispie v. Stone,43 Mo. 350;McLean v. Bragg,30 Mo. 262;Thompson v. Russell,30 Mo. 498;Papin v. Allen,33 Mo. 260;Steamboat v. Matthews,28 Mo. 248;Huckshorn v. Hartwig,81 Mo. 648.(3) Where there is any substantial evidence tending to support the finding and judgment of the trial court, this court will not review the finding of the trial court.Crane v. Timberlake,81 Mo. 431;Huckshorn v. Hartwig,81 Mo. 648;Hodges v. Black,76 Mo. 537;State v. Music,71 Mo. 401;State v. Zorn, 71 Mo. 416.

OPINION

Norton, J.

This cause has a remarkable and unusual history.It is an action to recover damages for hogs alleged to have been killed by defendant in operating its road, the hogs having strayed on the road by reason of defendant's failure to fence along its sides.The suit was brought in 1877, before a justice of the peace in Poplar Bluff township, Butler county, in August, 1877, from whose judgment in plaintiff's favor an appeal was taken to the circuit court of Butler county, from which county, on defendant's application, based on the prejudice of the inhabitants of said county, a change of venue was awarded to the Stoddard county circuit, where, after one or more continuances, had on defendant's motion, a change of venue of the same to Ripley county was granted on defendant's application, based on the prejudice of the inhabitants of Stoddard, Wayne, Dunklin and Butler counties.After the cause had thus been transferred to Ripley county, by agreement of parties, the cause was returned back to Butler county in 1883, the same county in which it originated in 1877.At the November term, 1883, of the Butler circuit court, it was tried by the court, a jury having been waived, and judgment rendered for the plaintiff, from which defendant prosecutes this appeal.

No instructions were asked on either side, and none were given, and the only points relied upon by counsel in his brief for a reversal of the judgment are that the evidence did not warrant the judgment, and that plaintiff, having sold his interest after the institution of the suit, was not the real party in interest.It is argued that the evidence wholly failed to show that the hogs in question were killed in Poplar Bluff township, and to show that they got on the track of the road at a point where it was not fenced.This point is not well taken.Jordan Ray, whose deposition was read on the part of plaintiff, testified as follows: "I know of nineteen hogs being killed on the St. Louis, Iron Mountain & Southern Railroad in the township of Poplar Bluff.The hogs belonged to Asher, and were killed by the trains of defendant.None of them were over twenty or twenty-five feet from the track, and some of them were on the track."It was shown by the evidence of other witnesses that the hogs for which a recovery was had were killed at a place on the road where it was not fenced, and where defendant was bound to fence, about one mile east of the town of Poplar Bluff.Although the evidence as to the place where the hogs got on the track was not direct the court might well have concluded from the facts in proof that they strayed upon it at the point where it was not fenced, especially so in the total absence of proof that the road had any fences along its sides in that vicinity.

It is claimed by counsel that, as it was shown by the evidence that plaintiff, after the institution of his suit before the justice, and after he had obtained judgment, and after defendant's appeal therefrom to the circuit court, had sold his...