Kelly v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 31 October 1885
• Citation: 86 Mo. 681
• Parties: KELLY, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY.
• Court: Missouri Supreme Court

86 Mo. 681

KELLY, Appellant,

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

B. J. Casteel for appellant.

The court erred in sustaining the motion to dismiss the case. Admitting that the justice had no jurisdiction over the person of defendant, he had jurisdiction of the subject matter, and when defendant appealed the case to the circuit court it waived the proper service of summons, and the circuit court got jurisdiction for all purposes, and should have proceeded to try and determine the case on its merits, de novo.

Shanklin, Low & McDougal for respondent.

HENRY, C. J.

This suit originated in a justice's court in Clinton county, and is for the recovery of double damages for the killing of a mare, the property of plaintiff. The mare was killed in Platte township, where the suit was commenced, and the summons was issued to a constable of that township, who (as is stated in the transcript of the justice), returned the same executed according to law. Not that that was the return made by the constable, but the judgment of the justice that the return of service was what the law required; judgment by default was rendered against the defendant in the justice's court, after which defendant appeared before the justice and filed a motion to set it aside, which was overruled, and defendant prosecuted an appeal to the circuit court. In that court defendant filed a motion to dismiss the suit, on the ground that the justice had no jurisdiction of defendant's person, because the summons was served in Shoal township, and not in Platte township, although defendant, when said writ was issued and served, had a station and station agent in charge thereof in said Platte township.

The defendant's appearance in the circuit court was for the purpose of this motion only. The appearance of defendant in the justice's court was not a special appearance. The transcript of the justice on that point is as follows: “This twenty-sixth day of March, 1881, comes the defendant by its agent, W. E. Clark, and files motion to set aside judgment by default.” It nowhere appears, except in an agreed statement of facts submitted with the motion in the circuit court, that the summons was served in Shoal, and not in Platte township. Upon the face of the transcript the justice had jurisdiction of defendant's person, and if the constable's return was false, the defendant had...