Haggard v. Atlantic & Pacific R.R. Co.

• Decision Date: 31 October 1876
• Citation: 63 Mo. 302
• Parties: JAMES HAGGARD, Respondent, v. ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

63 Mo. 302

JAMES HAGGARD, Respondent,

v.ATLANTIC AND PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Franklin Circuit Court.

J. N. Litton, for Appellant, cited: Hansberger vs. Pac. R. R. 43 Mo. 196; Iba vs. H. & St. Joe. R. R. Co., 45 Mo. 470.

John R. Martin, for Respondent.

The writ shows that the action was commenced in the township and county wherein the killing occurred. This is sufficient. It is not necessary that either the statement or transcript of the justice should do so. (Hansberger vs. Pac. R. R., 43 Mo. 196; Iba vs. Hann. & St. Joe. R. R. Co., 45 Mo. 469, particularly concluding portion of opinion on page 475.)

SHERWOOD, Judge, delivered the opinion of the court.

The complaint filed with the justice is in this form:

JAMES HAGGARD, Plaintiff,

)

Before

vs.

)

T. W. STONEBURG,

ATLANTIC & PACIFIC R. R. Co.

)

Justice of the Peace.

Plaintiff states that on the morning of the 6th day of August, 1873, an eastward bound train ran over and damaged and left in a dying condition, a certain heifer belonging to plaintiff of the value twenty dollars, for which he asks judgment,

JAMES HAGGARD,

Plaintiff.

This was filed with one of the justices of New Haven Township, Franklin County.

Summons thereupon issued, directed to the constable of that township, commanding him to summon the defendant “to appear before the undersigned justice of the peace of New Haven Township in Franklin County on the 10th day of September, 1873,” etc., etc. The writ was served on the defendant in that township, both parties appeared, a trial was had resulting in a judgment for the plaintiff, and defendant appealed to the Franklin Circuit Court, where the plaintiff, against the objection of the defendant, was permitted to file an amended statement, which alleged that the heifer was killed in the township above mentioned. The court, prior to this, had overruled the motion of the defendant to dismiss the cause on account of the absence in the original statement of the allegation which the amended statement supplied. A trial was had resulting in a verdict for plaintiffs, and defendant is again an appellant.

It is only necessary to notice one of the points to which attention has been called, and that is the one raised by defendant's motion to dismiss the cause. This motion should have prevailed. Plaintiff does not attempt to defend the action of the court in permitting the amended statement to be filed, but insists that it is sufficient that “the...