Hansberger v. Pacific R.R. Co.

• Citation: 43 Mo. 196
• Parties: E. M. HANSBERGER, Defendant in Error, v. PACIFIC RAILROAD COMPANY, Plaintiff in Error.
• Decision Date: 31 January 1869
• Court: Missouri Supreme Court

43 Mo. 196

E. M. HANSBERGER, Defendant in Error,

v.PACIFIC RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1869.

Error to First District Court.

Hicks & Phillips, for plaintiff in error.

I. The complaint before the justice, and the issue on the trial in the Circuit Court as presented by the record, was a common law action for killing stock, whereas the instructions given by the court assumed that the action was brought under section 5, chapter 51, R. C. 1855, p. 649. ( Vide 31 Mo. 399; 34 Mo. 177, 242.)

The plaintiff below, discovering that he could not recover on the statement of his cause of action filed with the justice of the peace, attempted to relieve the case from embarrassment and remain in court by filing in the Circuit Court an amended statement changing the cause of action from one at common law, for negligently running and managing the locomotive by which the stock was killed, to one under section 5, chapter 51, R. C. 1855, where the question of negligence as presented in the justice's court did not arise at all.

He could not do this; for “the same cause of action, and no other, that was tried before the justice shall be tried before the appellate court on appeal.” (R. C. 1855, § 18, p. 975.)

And while, by section 36, p. 945, R. C. 1855, the statement may be amended on motion, yet it is to be observed that this right is limited to the justice's court. When the case is appealed, section 18, p. 975, comes in and says: “Here in the Circuit Court the case must be tried as it comes up on the transcript; there is no power to amend in this court.”

1. The amended statement presented an entirely different cause of action. It changed the liability and rights of the defendant below, the character of the proof necessary, and the law as applicable to the case appealed to the Circuit Court. (22 Mo. 402 et. seq.; 11 Mo. 109; 30 Mo. 488; 39 Mo. 498; 2 Mo. 12, 13.) 2. The suit instituted before the justice of the peace was on a common-law right of action, and could have been prosecuted at any time within five years after the cause of action accrued.

The amended statement filed in the Circuit Court was on a statutory cause of action under section 5, chapter 51, R. C. 1855. By section 6 of chapter 51 it is provided that all actions instituted under said section 5 “shall be commenced within one year after the cause of such action shall accrue.” Now, the cause of action sued on at bar accrued in May and July, 1864; while the statement of the cause, which attempts to subject the defendant below to liability under said section 5, was not filed until April, 1866--nearly two years after the cause of action accrued.

Did not the amended statement, then, affect the substantial rights of the defendant below? Can a party, by such a manœuver in the appellate court, revive a cause of action already barred by the statute of limitations? ( Vide 40 Mo. 254, 256.)

II. The motion to dismiss was properly sustained, because it did not appear from the record in the case that the justice had jurisdiction of the cause of action or the amount sued for.

This action is for injury to personal property. By section 3, chapter 90, R. C. 1855, justices of the peace have jurisdiction only in such cases under fifty dollars, whereas the sum sued for in the action at bar is one hundred and seventy dollars.

If it were the intention of plaintiff to avail himself of an act to extend the jurisdiction of justices' courts, to be found on page 23, Sess. Acts 1860-1, he has failed to bring himself under the protection of its provisions. Section 2 of said act declares that “all suits arising under this act shall be commenced before some justice of the peace of the township in which the injury complained of was committed.”

It is, then, most manifest that, whilst under the provisions of this special act justices of the peace can exercise jurisdiction in actions against railroads for killing stock, regardless of the amount sued for, this jurisdiction is nevertheless restricted to injuries committed in the township where the justice exercising jurisdiction resides. Beyond the line bounding his municipality he has no extraordinary jurisdiction. It becomes necessary, therefore, that the transcript from the justice's court, or the pleading in the cause, should show affirmatively that the injury complained of was committed in the township where suit was instituted. “Nothing is intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.” (Peacock v. Bell et al., 1 Saund. 74 b.; Walker v. Turner, 9 Wheat. 548-9; 4 Mass. 641-3; 26 Mo. 65, 601; Gould's Plead. ch. 5, § 18, p. 218; Bac. Abr. Pl. Eq. 526; 27 Mo. 184.)

Draffin & Muir, for defendant in error.

The Circuit Court committed manifest error in striking out the amended petition of plaintiff and in dismissing his suit, and its judgment was rightfully reversed. (Gen. Stat. 1865, p. 708, § 36; Walker v. Harper, 33 Mo. 592.)

WAGNER, Judge, delivered the opinion of the court.

Plaintiff commenced his action against the defendant, before a justice of the peace in Pettis county, by filing his written statement claiming damages for the killing of stock. A trial was had, and verdict and judgment were rendered in his favor. Defendant appealed to the Circuit Court, and while the cause was pending in that court the plaintiff filed an amended statement. Subsequently the defendant filed a motion to strike out the amended statement and to dismiss the action, for the reason that the amended statement contained another and different cause of action from that tried in the justice's court and appealed from, and for the additional reason that the...