Grant v. Omaha, Kansas City & Eastern Railway Co.
| Decision Date | 29 April 1902 |
| Citation | 68 S.W. 91,94 Mo.App. 312 |
| Parties | ABRAM S. GRANT, Respondent, v. OMAHA, KANSAS CITY & EASTERN RAILWAY CO. et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Knox Circuit Court.--Hon. Edwin R. McKee, Judge.
AFFIRMED.
Judgment affirmed.
O. D Jones and J. G. Trimble for appellants.
(1) The peremptory declaration should have been given. There was no evidence of negligence. The law required the company to burn off the grass. There is nothing to show that the men performing this statutory duty did so in a careless or negligent manner. (2) Destruction of grass by fire is an injury to the realty and there is no competent evidence in this case that the realty was injured. Shannon v Railroad, 54 Mo.App. 223. (3) The court had no jurisdiction of the cause. The cause of action, if any accrued before the appointment of receivers. Even if liable they can not be sued without leave of the court which appointed them. The petition alleges such leave but the testimony is silent in regard thereto. That leave has been given is a fact to be proved as any other fact in the case. Smith v. Railroad, 151 Mo. 391.
L. F. Cottey for respondent.
(1) This suit was properly brought, and the judgment should be affirmed upon the authority of the following cases: Proctor v. Railway, 42 Mo.App. 124; Combs v. Smith, 78 Mo. 32; Harding v. Nettleton, 86 Mo. 658; Smith v. Railway, 151 Mo. 391. (2) It is well-settled law in this State, that the recitals in a judgment rendered by a court of general jurisdiction, in the absence of affirmative record evidence to the contrary, are conclusively presumed to be true. Nevatt v. Springfield Normal School, 79 Mo.App. 198; Gates v. Tusten, 89 Mo. 13; Schad v. Sharp, 95 Mo. 573. (3) "Such courts proceed by right and not by wrong, and the presumption that they do so will attend their acts and doings, even in causes coming up to this court on error or appeal." St. Louis v. Lanigan, 97 Mo. 180; Black on Judgments, sec. 270. (4) Thomas v. Ins. Co., 47 Mo.App. 169; Yoeman v. Mueller, 33 Mo.App. 343; Moore v. Korte, 77 Mo.App. 500; Taylor v. Scott, 26 Mo.App. 249; Cordell v. Bank, 64 Mo. 600; Phillips v. Phillips, 107 Mo. 360.
--The petition alleges that the Omaha, Kansas City & Eastern Railroad Company is in the hands of Charles Chapman and James Hopkins, as receivers, by order of the United States Circuit Court for the Western District of Missouri made January 7, 1900; that plaintiff has obtained an order from the judge of said circuit court permitting him to bring this suit. For cause of action the petition alleges, in substance, that on the tenth day of October, 1899, prior to the appointment of the receivers and while the defendant company was operating the road, by the negligence of its agents, employees and section hands, fire was permitted to escape from the right of way of said road on plaintiff's adjoining land by reason whereof the grass and grass roots of his meadow land were destroyed to his damage in the sum of thirty dollars, and ten tons of hay in stacks, of the value of seventy dollars, were also burned up and destroyed.
Defendants Campbell and Hopkins answered for themselves admitting that they were receivers of the property of the road, and denied every other allegation of the petition, and alleged that they were not necessary or appropriate parties to the suit.
A trial was had to the court without a jury. The court found for the plaintiff and assessed his damages at one hundred dollars and rendered judgment against the receivers to be paid out of the property or earnings of the defendant company.
It was admitted on the trial that the plaintiff had received from the judge of the United States Circuit Court for the Western District of Missouri, an order permitting him to bring this suit.
The evidence on plaintiff's behalf...
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