Fitterling v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 79 Mo. 504
• Parties: FITTERLING v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 504

FITTERLING

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

T. J. Portis and E. J. Sherlock for appellant.

W. W. Wood for respondent.

SHERWOOD, J.

Action for damages for killing mules in Centerview township, brought before a justice of the peace of Warrensburg township, which adjoins the township where the injury happened.

I.

We have no doubt that the justice had jurisdiction of the subject matter of the action. Section 2835, Revised Statutes 1879, so far as pertinent to the present inquiry, is as follows: “Except as otherwise provided by law, justices of the peace shall have original jurisdiction of * * all actions against any railroad company in this State to recover damages for the killing or injuring of horses, mules, cattle or other animals within their respective townships, without regard to the value of such animals or the amount claimed for killing or injury to the same.” But jurisdiction of justices of the peace is “otherwise provided by law;” for section 2839, Revised Statutes 1879, after specifying where suits before justices of the peace shall be brought, contains a new clause, the fifth, wherein it provides that “any action against a railroad company for killing or injuring horses, mules, cattle or other animals, shall be brought before a justice of the peace of the township in which the injury happened, or any adjoining township.”

II.

The justice having jurisdiction over the subject matter of the action, whether the service of the summons on the defendant was sufficient or not, is immaterial. The defendant appeared before the justice and filed a general motion to set aside the judgment by default. Had the justice set aside the default it is clear no further service on the defendant would have been necessary; and all defects in the former service would have been waived.

Besides, on reaching the circuit court, to which the defendant appealed, by express provision of the statute, the cause was to be tried de novo, “without regarding any error, defect or other imperfection in the original summons or the service thereof.” R. S. 1879, § 3052. Defendant, by bringing up the cause by appeal, dispensed with the necessity of a regular summons before the justice. Gant v. Railroad Co., 79 Mo. 502, and cases cited.

Moreover, after defendant's special motion in the circuit court to dismiss the suit was denied, it appeared to the action, and introduced evidence in its defense. Jurisdiction over the defendant was, therefore, thereby acquired even had it not been acquired before. Reddick v. Newburn, 76 Mo. 423.

III.

The evidence adduced by plaintiff was the following:

Plaintiff testified: The Missouri Pacific Railroad runs through our farm in Centerview and Warrensburg townships, Johnson county, Mo. I live in Warrensburg township. My mules were killed on the 17th day of December, 1879. On the 19th day of December, 1879, my attention was called to the fact that the gate was out of repair. I did not know this before. The gate is only a few rods from my house. I pass through it nearly every day, and sometimes several times in a day; passed through the day the mules were killed and the day after; did not notice anything wrong with the gate. My lot is on the south side of the railroad. We have a farm crossing there, but no cross-fences at the crossing. The hook was large and strong, and the staple was driven in the post. They were put in so that if the gate was pressed hard against the post the hook wonld come out of the staple. There were no cattle-guards at the crossing; no cross-fences there either. The fields are on both sides of the railroad. On the evening of December 17th, 1879, I came home and chained my mules together by the neck as usual to keep them from jumping and turned them into my lot and closed the gate. The next morning the mules were out of the lot. I found them both dead on the right of way about 200 yards west of the gate, in Centerview township, both killed by defendant's train, lying close together. The mules were about fourteen hands high and at least ten years old. Mr. Lewis and I went to bed about half past nine, and about ten o'clock I heard the engine whistle once. I think the mules were killed then. They did not ring the bell. The mules were stiff and cold next morning. I had been to town the day the mules were killed, along with J. W. Patterson and Mr. Lewis. We came home about dark that evening. I ran ahead of the wagon and came through the gate and closed it with my own hands; had the hook in my hands; did not detect anything wrong with hook or staple. Mr. Patterson came through the gate after me with the wagon and closed the gate. I saw him close it. This was just about dark the same evening the mules were killed. The gate is made of inch boards, and is a very strong gate. The hinges are as strong as if made from iron from a wagon tire. They are two feet long. The gate is at least five and a half feet high. The posts are large railroad ties. The hook and staple are of three-eighths inch rod-iron and very strong. I live in Warrensburg township. The mules were killed across the line in Centerview township. Defendant has a freight and ticket office and station at Centerview, a town in Centerview township where the mules were killed; also an agent at Centerview station; also a depot, ticket office and an agent at Warrensburg. Warrensburg township adjoins Centerview township on the east. I saw the tracks of the mules where they went out of the lot through the gate and up the railroad...