Bartlett v. McDaniel

• Decision Date: 30 April 1831
• Citation: 3 Mo. 55
• Parties: BARTLETT v. MCDANIEL.
• Court: Missouri Supreme Court

3 Mo. 55

BARTLETT

v.MCDANIEL.

Supreme Court of Missouri.

April Term, 1831.

ERROR FROM MARION CIRCUIT COURT.

C. H. ALLEN, for plaintiff.

HUNT, for defendant.

TOMPKINS, J.

Bartlett sued McDaniel before a justice of the peace and obtained a judgment.In the Circuit Court, to which McDaniel had appealed, the judgment of the justice was reversed and the cause dismissed, and to reverse this judgment Bartlett prosecutes his suit here by writ of error.The action before the justice was for damages sustained by plaintiff, by reason of a trespass charged to have been committed by the defendant, by castrating the plaintiff's bull.In the fifth section of the act to establish Justices' Courts, &c., it is required that in all suits a brief statement of the cause of action, and the amount claimed, shall be made in writing and filed with the justice, and the same or a copy annexed to the summons; and that the service thereof shall be by reading the original summons, and the complaint or statement annexed thereto in the hearing of the defendant.The plaintiff filed with the justice a sufficient statement of his cause of action, and the summons of the justice required the defendant to answer unto Robert B. Bartlett in an action of trespass vi et armis for castrating a bull, damages forty-five dollars.It does not appear that a statement of the cause of action was either annexed to the summons or read to the defendant.The defendant appeared before the justice and defended.

It is contended by the plaintiff: First.That the defendant attended before the justice of the peace and defended, and thereby waived all exceptions.Second.That the notice of his complaint being substantially incorporated in the summons, it was not material that the statement required by the act should be annexed to the summons, and read to the defendant.

First.It is true that if there has been an imperfect return of the service of a summons and the defendant appears and defends, he...