Louisville & N. R. Co. v. Barker

• Decision Date: 27 July 1892
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. BARKER.

11 So. 453

96 Ala. 435

LOUISVILLE & N. R. CO. v. BARKER.

Supreme Court of Alabama

July 27, 1892

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

Action by Joseph Barker against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was commenced on June 16, 1890, before a justice of the peace, plaintiff claiming of defendant "$87.00 due on account for the killing of 25 sheep by said railroad, made by the defendant on the 6th day of June, 1890, and payable on the _________ day of June, 1890; and plaintiff avers that this account is due and unpaid." On the trial of the case before the justice of the peace the defendant pleaded that it did not owe the plaintiff in the manner or form set forth in said complaint. The justice rendered judgment for the plaintiff for $87.50, and the defendant appealed from this judgment to the city court of Decatur. The plaintiff there filed an amended complaint, averring that the action was to recover damages for the negligent, careless, and reckless killing by defendant of the plaintiff's sheep. The defendant filed a motion in the said court to dismiss the cause for the want of jurisdiction of the justice of the peace, the amount claimed being over the amount of $50, and in excess of the jurisdiction of the justice of the peace. This motion was overruled. The defendant then demurred to the amended complaint filed before the justice of the peace averring that the complaint as filed was ex delicto, and as originally filed was ex contractu, and also demurred to the complaint as amended as repugnant, in that it alleges that the accident was caused by the carelessness or recklessness of the defendant. These demurrers were overruled, and the defendant then filed a plea in abatement alleging that there was a departure in the action in the said court from the original action in the justice's court. This plea in abatement was likewise overruled. On the trial the plaintiff, who was the only witness examined, testified that he owned the 25 sheep which were killed by the defendant's train; that the track where the sheep were killed was straight for several hundred yards and the view unobstructed. The defendant offered to introduce the plaintiff as a witness, and examine him in his own behalf, to which the plaintiff objected, and the court sustained the objection, to which ruling the defendant duly excepted. Motion was made by the appellant at the time of the submission of the cause in this court to strike from the record the reasons given by the presiding judge, following the bill of exceptions, for his refusal to allow the defendant to introduce the plaintiff as a witness.

Harris & Eyster, for appellant.

Wirt & Speake, for appellee.

MCCLELLAN J.

It seems to be well settled by the decisions of this court that on appeal or statutory certiorari from the judgment of a justice of the peace, the want of jurisdiction in the primary court cannot be availed of unless objection thereto has been taken before the justice. Glaze v. Blake, 56 Ala. 379; Burns v. Henry, 67 Ala. 209; Railway Co. v. Lazarus, 88 Ala. 453, 6 South. Rep. 877. When the lack of jurisdiction appears from the complaint filed in the justice's court, advantage of the fact may be taken by motion to dismiss the action, and, where it does not appear on the face of the complaint, the facts showing a want of it may then be set up by plea in abatement, denying jurisdiction. Burns. v. Henry, 67 Ala. 210, and authorities there cited. In the case at bar it did not appear from the complaint that plaintiff's claim was in tort and for damages in excess of the justice's jurisdiction in that character of action, but it might well have been averred in a plea in abatement, in effect, that the gravamen of the action was the wrongful conduct of the defendant resulting in the death of the live stock for the loss of which damages are claimed, and such plea would have efficiently raised the issue of jurisdiction; or it would seem that an informal objection taken after the evidence had disclosed the cause of action, as arising upon an alleged tort of the defendant, would have been sufficient to present the question of jurisdiction in such sort that defendant would not be precluded from insisting upon it on appeal. Knowles v. Steed, 79 Ala. 427. But no objection, in any form, having been taken to the justice's jurisdiction while the case was in that court, the motion to dismiss the case, made on that ground in the city court, was properly overruled.

Nor do we think that the trial court erred in its rulings on the question of the alleged departure in the city court from the case made in the justice's court. As was said in ...