Peters v. St. Louis & Iron Mountain R.R. Co.

• Citation: 59 Mo. 406
• Parties: HENRY W. PETERS, Appellant, v. ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Respondent.
• Decision Date: 31 March 1875
• Court: United States State Supreme Court of Missouri

59 Mo. 406

HENRY W. PETERS, Appellant,

v.ST. LOUIS AND IRON MOUNTAIN RAILROAD COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

Lee & Adams, for Appellant, cited in argument Baiser vs. Lasch, 28 Wis., 268; Griffin vs. VanMeter, 53 Mo., 431; Orear vs. Clough, 52 Mo., 55; Tower vs. Moore, 52 Mo., 118.

Dryden & Dryden, for Respondents.VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace under the fifth section of the act concerning Justices Courts, (2 Wagn. Stat., 809, 810) to recover fifty dollars, the value of a cow killed by the cars of defendant, being used on its railroad.

A summons was issued by the justice on the 23d day of September, 1871, and was made returnable on the 13th day of October, 1871. The summons was returned by the constable on the return day with the following return endorsed theron:

“Executed this writ in St. Louis township, this 29th day of September, 1871, by delivering a true copy thereof to L. B. Clark, treasurer of the within named company, the president or other chief officer not being found.”

The docket entries made by the justice, are as follows:

Henry W. Peters vs. The St. Louis and Iron Mountain Railroad.

“Summons on demand filed for damages, amounting to $50 00, issued to constable O'Connell, September 23d, 1871, returnable 13th October, 1871, returned executed. On the return day parties appeared, and cause by consent continued to October 20th, 1871. On this day parties appeared and defendant files motion to dismiss the case for want of sufficient service. Motion taken under advisement and cause continued to October 27th, 1871. On this day the case being called, the plaintiff appeared, and motion to dismiss is overruled by the justice. The defendant being called comes not, but makes default; cause investigated and submitted to the justice, who adjudged that the plaintiff have judgment against the defendant for the sum of fifty dollars for his damages, together with costs of suit, etc.,”

It appears that the defendant appeared on the same day with the rendition of the judgment, and filed a motion to set aside the judgment rendered against it by default, which being overruled, it appealed to the St. Louis Circuit Court.

In the Circuit Court, the defendant appeared and moved the court to dismiss the case for the reason that the justice of the peace, before whom the cause was commenced, never acquired jurisdiction of the person of the defendant, and that said Circuit Court had not, and ought not, to have jurisdiction of the same. This motion was overruled by the court, and the defendant excepted. The defendant refused to further appear in the cause, and the Circuit Court afterwards affirmed the judgment of the justice, and rendered final judgment against the defendant. From this last judgment the defendant appealed to the General Term of said Circuit Court. The court at General Term reversed the judgment rendered against the defendant, and rendered a judgment dismissing the plaintiff's suit. From this last judgment the plaintiff has appealed to this court.

There are only two questions presented in this court for our consideration. The first is, as to the sufficiency of the service of the summons on the defendant, as indicated by the return made thereon by the...