Carter v. Current River R. Co.

• Decision Date: 12 June 1900
• Parties: CARTER v. CURRENT RIVER R. CO.
• Court: Missouri Supreme Court

57 S.W. 738

156 Mo. 635

CARTER v. CURRENT RIVER R. CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

JUSTICE OF THE PEACE — JURISDICTION — TRANSCRIPT AS EVIDENCE — APPEAL — VERDICT — REVIEW.

1. A transcript reciting that a suit was tried before a person as justice of the peace for a certain county, judgment rendered, and execution issued to a constable of a certain township in such county, is prima facie evidence that such person was a justice of the peace for said township, and had jurisdiction to try such case.

2. Where the testimony of plaintiff was uncontradicted by that of defendant, and vice versa, except as the theory of one, if true, would defeat the claim of the other, there was a question of fact for the jury, and its verdict will not be disturbed on appeal.

Appeal from circuit court, Carter county; John G. Wear, Judge.

Action by Alexander Carter against the Current River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. J. Orr, for appellant. John C. Brown and Daniel Huett, for respondent.

MARSHALL, J.

This is an action, under section 2611, Rev. St. 1889, to recover double the value ($35) of two steers alleged to have been run over and killed by one of defendant's trains on the 28th of August, 1896, in Carter township, Carter county, Mo., at a point not within the limits of any corporation, town, or city, or switch limits of any station, or at any crossing of any public or private road or street over the railroad, but where the railroad passes through, along, and adjoining uninclosed lands, in consequence of the defendant's failure to construct and maintain a lawful fence and cattle guard as by the said statute required. The suit was begun and tried before M. H. Moss, who is described in the caption of the petition to be "a justice of the peace of Carter township, Carter county, Missouri," who rendered judgment for the plaintiff for $70, from which defendant appealed to the circuit court, where, upon a trial de novo, the same judgment was rendered, and defendant appealed to this court.

The defendant contends here, as it did in the trial court, (1) that section 2611, Rev. St. 1889, violates sections 20 and 30 of article 2, and section 53 of article 4, of the constitution of Missouri, and articles 5 and 14 of the amendments to the constitution of the United States; (2) that there is no proof that M. H. Moss, before whom this suit was commenced, was a justice of the peace of the township in which the stock was killed; and (3) that there was not sufficient evidence to make a case under the statute.

1. The constitutionality of section 2611, Rev. St. 1889, has so recently been sustained in a clear opinion by Brace, P. J., in the case of Kingsbury v. Railway Co. (Mo. Sup.; not yet officially reported) 57 S. W. 547, and in which he so exhaustively reviews the prior decisions of this court and of the supreme court of the United States, and shows that such has been the uniform and unbroken line of decisions, that nothing further need be said than that the constitutionality of that statute must be regarded as settled in this state.

2. To show that Moss was a justice of the peace for Carter township, Carter county, the respondent sets out in full the petition, which recites that fact in the caption; the summons which the justice issued to the constable of that township; the return of the constable, showing the service of the summons upon the agent of the defendant in that township; the affidavit for appeal, signed by appellant's attorney, which recites that the suit was before Moss, as justice of the peace for that township; and the appeal bond, which recites in its body that the defendant "has appealed from the judgment of M. H. Moss, a justice of the peace for Carter township, in Carter county, Missouri," — and the respondent contends that these facts conclude the inquiry on this question. If these facts appeared in the record before this court, there would be no room for this contention of the defendant; but of these only the petition, reciting in its caption, "Before M. H. Moss, Justice within and for Carter County, Mo.," is embodied in the transcript in this case. But there is one other recital in the record before this court, which is most important. It is the recital that "on the 15th day of September, 1897, there was filed in the office of the clerk of the circuit court [of Carter county] a transcript from M. H. Moss, one of the justices of the peace in and for said county, which transcript and accompanying papers are in words and figures as follows." That transcript states the parties; that the suit was before Moss, "justice within and for Carter county, Mo."; that the suit was filed August 27, 1897, "for stock killed by defendant for $35"; the issuance of the summons, returnable September 11, 1897; the appearance of both parties on the return day; the trial and judgment; the issuance of the execution to "Charles Frazier, constable of Carter township, Carter county, Missouri"; and the appeal, — all of which complies with the duty imposed upon the justice of the peace by section 6131, Rev. St. 1889. These recitals are sufficient, without considering the other matters cited by respondent, which cannot be here considered, because they are not in the record before us, to show, prima facie, at least, that Moss was a justice of the peace for...