Cooksey v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 477
• Court: Missouri Supreme Court
• Parties: COOKSEY v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

74 Mo. 477

COOKSEY

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Strong & Mosman for appellant.

Plaintiff's evidence as to his dismissal of the suit before the justice, was incompetent. Wynne v. Aubuchon, 23 Mo. 30; Montgomery v. Farley, 5 Mo. 233; Bailey v. McGinniss, 57 Mo. 362; Jeffries v. Wright, 51 Mo. 215; Johnson v. Beazley, 65 Mo. 250; Rumfelt v. O'Brien, 57 Mo. 569. The judgment obtained by plaintiff before the justice merged his cause of action, and he had none when he instituted this suit in the circuit court. Blake v. Downey, 51 Mo. 437.

James Limbird for respondent.

NORTON, J.

This suit was instituted in the Holt county circuit court, to recover damages for injuries alleged to have been done to a mule of plaintiff, in consequence of the failure of defendant to erect and maintain cattle guards at a farm crossing, and good and sufficient or lawful fences on the sides of its road, as well as its failure to erect and maintain sufficient gates at said farm crossing. The answer of defendant, besides being a general denial, set up that plaintiff ought not to have or maintain his said action for that, on the 23rd day of July, 1877, the plaintiff sued defendant for and on account of the injuries to the mule mentioned in the petition herein, before a justice of the peace, who had jurisdiction of such action, and on the 9th day of August, 1877, obtained judgment before said justice for said cause; that on the 10th day of August, 1877, the plaintiff instituted this cause; that the suit before said justice was for the same cause of action as that sued on in the amended petition herein. On the trial plaintiff obtained judgment, from which defendant has appealed, and among other errors assigned, it is alleged that the court erred in refusing to give the following declarations of law asked by the defendant, viz:

4. If the jury believe from the evidence that prior to the time of the commencement of this suit the plaintiff herein had brought an action before one Lucas, a justice of the peace, against the defendant for its injuries of the mule in suit, and had obtained a judgment for damages therefor, and that said judgment was still in force at the time of the commencement of the suit herein, then plaintiff cannot recover, notwithstanding said suit may have been dismissed by plaintiff after the commencement of this present action.

5. If the jury find from the evidence that the plaintiff, on the 23rd day of July, 1877, began a suit before a justice of the peace of Forbes township, for injuries done to the mule mentioned in the petition, which injuries so sued for before said justice were the same for which he brings this suit, and that said plaintiff recovered a judgment before said justice on said cause of action, on the 9th day of August, 1877, and that afterward, on the 10th day of August, 1877, and while said judgment was still in force, he began this suit, then the court instructs the jury that the damages...