Ellis v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 372
• Parties: ELLIS v. THE MISSOURI PACIFIC RAILWAY COMPANY, Apellant.
• Court: Missouri Supreme Court

83 Mo. 372

ELLIS

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Apellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Vernon Circuit Court.--HON. CHAS. G. BURTON, Judge.

REVERSED.

Smith & Krauthoff with T. J. Portis, for appellant.

Under the statute, this action could only be brought before a justice of the peace of the township in which the injuries sued for happened, or some adjoining township. Rev. Stat., § 2839. The petition alleges the killing to have occurred in Washington township, and the suit was brought before a justice of the peace of Center township, and there is no allegation that the latter adjoins the former, nor is this allegation supplied by any recital of record. The jurisdiction of the justice not being made to appear, the motion to dismiss ought to have been sustained. Haggard v. Railroad Co., 63 Mo. 302; Hansberger v. Pacific R. R., 43 Mo. 196; Iba v. Railroad Co., 45 Mo. 469; Barnett v. Railroad Co., 68 Mo. 56. And in the absence of evidence showing that these townships adjoined each other, the demurrer to the plaintiff's evidence ought to have been given. Mitchell v. Mo. Pac. Ry. Co., 82 Mo. 106.

Scott & Hoss for respondent.

The two townships adjoin and by express wording of the statute the justice had jurisdiction to try the case and the mere omission to state in the petition that the townships adjoined could not affect the jurisdiction of the court. And if any defect did exist it was cured by verdict. The statute gives justices of the peace jurisdiction in ordinary civil actions over the persons of defendants residing in their own or adjoining townships and it is not necessary to allege that the township in which defendant resides is the same or adjoins that in which suit is brought. Fitterling v. R. R., 79 Mo. 504.

EWING, C.

The plaintiff commenced this action before H. P. Mobley, a justice of the peace of Center township in Vernon county, to recover double damages under section 809, Rev. Stat., for certain stock, all alleged to have been killed by the defendant in Washington township, in said county. There is no allegation that Washington township adjoins Center. The plaintiff recovered judgment before the justice, from which the defendant appealed to the circuit court, where it filed a motion to dismiss the cause, alleging that “the court before whom this suit was brought did not have, nor has this court, any jurisdiction either of the person of defendant or the subject matter of said suit.” This motion was overruled. Defendant objected to the introduction of any evidence under the petition, which was overruled and the plaintiff thereupon introduced evidence tending to establish all the facts...