Peddicord v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 160
• Parties: PEDDICORD v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 160

PEDDICORD

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Lafayette Circuit Court.--HON. JNO. P. STROTHER, Judge.

REVERSED.

Robert Adams and G. N. Bowles for appellant.

(1) The statute relating to amendments cannot be construed so as to authorize a judgment against a party not brought into court by a summons as required by law. (2) The court erred in overruling the defendant's demurrer to the evidence at the close of the case. By plaintiff's own testimony it appears that his bull was a trespasser upon the land of Stewart, and he failed to show that the partition fence between the two pastures was not a lawful one. Berry v. Ry., 65 Mo. 172; Harrington v. Ry., 71 Mo. 384.

Graves & Shewalter for respondent.

EWING, C.

The record in this case shows it to have been a proceeding by the plaintiff herein and against the defendant before a justice. The transcript of the justice of the peace shows that “complaint was filed, summons issued * * * returned, served as the law directs,” etc., but the record does not contain a copy of the complaint before the justice, nor does it contain a copy of the summons or the constable's return thereon. There was judgment before the justice by default; then an appeal to the circuit court, where upon motion of the plaintiff the court granted him leave to file an amended statement, which was done, and also asked leave for the constable to amend his return, and that the justice have leave to amend the original summons; all of which was granted. But no original summons nor any constable's return appears of record.

The defendant then moved the court to dismiss the suit for want of jurisdiction, and for insufficiency of the amended statement which was as follows: “The plaintiff for amended statement, filed by leave of the court first had and received, avers that the defendant is a corporation duly incorporated for railway purposes, and as such is now and was on the twenty-eighth day of July, 1881, operating a railroad, running from Sedalia, Pettis county, Missouri, to Lexington, Lafayette county, commonly known and called the Lexington branch of the Pacific railroad, which said road ran through Dover township, in said county; that the defendant failed to erect and maintain along the line of said road, a good and sufficient fence where the same runs through enclosed and cultivated lands in said Dover township, in said county; that on the twenty-eighth day of July, 1881, in Dover township, Lafayette county, Missouri, and not at a public crossing, or within the limits of any incorporated town or city, through the failure and neglect of the defendant, as aforesaid, to erect and maintain its fences, a fine and valuable bull of the plaintiff's got upon the railroad track of the defendant's in said Dover township, said county and state, and was by the engine and cars of the defendant then and there run and managed by the servants of the defendant in and about its business, so injured and mangled in said Dover township that the same could not live and was by the agent of the defendant, afterwards killed. That said bull was of the value of one hundred dollars, for which sum of one hundred dollars and costs defendant (plaintiff) asks judgment, and that said judgment for one hundred dollars be doubled according to the provisions of the statute in such cases made and...