Jaco v. Southern Missouri & A. Ry. Co.

• Decision Date: 13 May 1902
• Court: Missouri Court of Appeals
• Parties: JACO v. SOUTHERN MISSOURI & A. RY. CO.

68 S.W. 379

94 Mo. App. 567

JACO v. SOUTHERN MISSOURI & A. RY. CO.

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

APPEAL — RECORD SHOWING JURISDICTION — BURDEN OF SHOWING ERROR — ACTION FOR FINAL APPEAL — JURISDICTION OF JUSTICE — SUFFICIENCY OF RECORD — FRIVOLOUS APPEAL — AWARD OF DAMAGES — EFFECT OF GOOD FAITH.

1. "Jurisdiction of the subject-matter of a cause" means the authority to hear and determine cases of the class to which the action in question belongs. Where jurisdiction of the subject-matter and of the parties appears in an appellate record, it devolves upon the appellant to show error therein, in default of which the judgment should be affirmed.

2. A statement of claim in an action begun before a justice of the peace is held to state facts giving the justice jurisdiction of the subject-matter of the action.

3. It is necessary that at least some minute to show the filing of a bill of exceptions should appear in the abstract upon an appeal founded on a "short record"; otherwise an appellate court cannot review the bill of exceptions, as part of the record.

4. Where an appeal appears to have been taken in good faith, the court does not award damages as for a frivolous appeal, under section 867, Rev. St. 1899.

(Syllabus by the Judge.)

Appeal from circuit court, Wayne county; Frank R. Dearing, Judge.

Action by D. C. Jaco against the Southern Missouri & Arkansas Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The statement before the justice of the peace in this case is as follows (omitting caption and signature): "Plaintiff states that defendant is a corporation organized and doing business under and by virtue of the laws of the state of Missouri; that on the 23d day of October, 1900, defendant was running and operating a railroad through Black River township, in the county of Wayne, state of Missouri; that on said day plaintiff was the owner of a certain cow, to wit, one spotted milch cow, about five years old, and of the value of twenty-eight and 30/100 dollars ($28.30); that said cow on said day strayed in and upon the track and grounds occupied by the said railroad defendant, about ¼ mile below, being N. E. of Moore's switch, on said defendant's railroad, at a point where said road passes through, along, or adjoining certain uninclosed lands at and in the township of Black River, in the county of Wayne, state of Missouri, and at a point where said defendant was by law required to erect and maintain good and lawful fences along the side of its said road, and not at a public crossing, nor within an incorporated city, town, or village. Plaintiff further states that the said cow strayed and went in and upon said railroad track and grounds by reason of the failure and neglect of defendant to erect and maintain good and lawful fences on and along the sides of its said road where said cow entered upon the same as aforesaid. Plaintiff further states that defendant, by its agents and servants, ran its engines and cars upon and against said cow at said point in Black River township, in the county of Wayne, state of Missouri, on the 23d day of October, 1900, thereby killing and causing the death of said cow, to plaintiff's damage in the sum of twenty-eight and 30/100 dollars ($28.30). Plaintiff further states that he has from time to time asked and demanded of said defendant company a settlement to the amount of his damages, but that defendant has failed and refused, and still fails and refuses, to pay same to plaintiff. Wherefore plaintiff prays judgment in the sum of fifty-six and 60/100 dollars ($56.60), being double the damages sustained by him as aforesaid." All other material facts appear in the opinion of the court.

F. E. Burrough, for appellant.

BARCLAY, J. (after stating the facts).

This action was begun before a justice of the peace in Black River township, Wayne county, to recover damages in the sum of $56.60 for the killing of a cow, charged as a result of defendant's omission to maintain lawful fences along its railroad. The statement filed before the justice should be printed along with the official report of this opinion. It gives a full outline of plaintiff's claim. Plaintiff had judgment before the justice. On appeal to the circuit court a like result ensued on a trial anew before Judge Dearing and a jury. The verdict of the jury was for the plaintiff, and his damages assessed at $28.30. The court ordered the damages doubled, under section 1105, Rev. St. 1899, and entered judgment for plaintiff in the sum of $56.60 in August, 1901. Defendant appealed to this court promptly. No question of...