Backenstoe v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1885
• Citation: 86 Mo. 492
• Court: Missouri Supreme Court
• Parties: BACKENSTOE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

86 Mo. 492

BACKENSTOE

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Kansas City Court of Appeals.

AFFIRMED.

G. S. Grover and W. H. Blodgett for appellant.

While it was averred in the statement that the animal was killed in Egypt township, Carroll county, Missouri, such fact was not proved. In the absence of such proof, no venue was shown and no jurisdiction was acquired by the court. State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Iba v. Railroad, 45 Mo. 469; Haggard v. Railroad, 63 Mo. 302; Barnett v. Railroad, 68 Mo. 56.

Hale & Sons for respondent.

The statement avers that the killing was done in the township where the suit was brought, and this was sufficient to give the court jurisdiction. Barnett v. Railroad, 68 Mo. 50. The proof was that the killing was done in the town of Norborne, within the switch limits. It will be assumed after verdict that it was done in the township.

HENRY, C. J.

This suit was commenced before a justice of the peace in Egypt township, Carroll county, to recover double damages for the killing of plaintiff's horse by a train of cars. Plaintiff had a judgment by default, from which defendant appealed to the circuit court, where plaintiff was again successful, and defendant appealed to the Kansas City court of appeals, which reversed the judgment and remanded the cause; but, Judge Hall not concurring, the cause has, under the provisions of the constitutional amendment, by which that court was created, been certified to this court.

There was no evidence tending to prove that the horse was killed in Egypt township, unless the proof that it occurred within the corporate limits of the town of Norborne, in said county, warranted the jury in inferring and finding that it occurred in Egypt township. As was observed by Judge Philips, who delivered the opinion of the court of appeals: “These township lines are made and unmade at the discretion of the county courts. The courts would not take judicial cognizance that Norborne was in Egypt township. How, then, could a jury infer it? If the horse was not killed in Egypt township, the justice had no jurisdiction of the cause.”

Section 2835, Revised Statutes, gives a justice of the peace jurisdiction “of all actions against any railroad company in this state, to recover damages for the killing or injuring horses, mules, cattle or other animals, within their respective townships.” And section 2839 provides that such actions “shall be brought before a justice of the peace of the township in which the injury happened, or any adjoining township.” Justices' courts are courts of limited and inferior jurisdiction, and in the face of these provisions it cannot, with any degree of plausibility, be contended that the fact that the animal was killed in the township where the suit was brought is not a jurisdictional fact, or that the party suing can confer jurisdiction upon the justice of the peace by simply asserting in his statement that the animal was killed in the justice's township. If this were sufficient, then a party complaining could sue before a justice of the peace in St. Louis county for the...