Roberts v. The Missouri Pacific Ry. Co.

• Decision Date: 07 December 1885
• Citation: Roberts v. The Missouri Pacific Ry. Co., 19 Mo.App. 649 (Kan. App. 1885)
• Parties: H. H. ROBERTS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 649

H. H. ROBERTS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

December 7, 1885

APPEAL from the Moberly Court of Common Pleas, HON. G. H BURCKHARTT, Judge.

Reversed and remanded.

The facts are sufficiently stated in the opinion of the court.

W. A MARTIN, for the appellant.

I. The demurrer to plaintiff's evidence should have been sustained. Suits of this kind must be brought in the township where the injury happened, or in an adjoining township. Rev Stat., art. 2, ch. 44, sect. 2839, Justices' Courts.

II. The place where the killing was done is matter for proof, and there was no evidence to show in what township the cow was killed. Mitchell v. Missouri Pacific Railroad, 82 Mo. 106, per Philips, Com'r. Justices of the peace are confined strictly to the authority given. Hansberger v. Pacific Railroad, 43 Mo. 196; Haggard v. A. & P. Railroad, 63 Mo. 302.

III. Plaintiff's instructions should not have been given. They authorize the jury to find for plaintiff without finding that the cow was killed in the township where suit was brought, or in an adjoining township. And one of them (No. 1) authorizes the jury to find for plaintiff if the cow was injured, and not killed. There was no such issue made in the pleadings, and no evidence on which to base it. Gugsby v. Fullerton, 57 Mo. 309; Haskins v. St. L., K. C. & N. Ry. Co., 58 Mo. 302.

No brief appears on file for respondent.

PHILIPS P. J.

This action was begun in a justice's court, and is to recover damages for the alleged injury to plaintiff's cow, inflicted by the defendant's cars within the corporate limits of the city of Moberly, in Sugar Creek township, Randolph county.

The plaintiff recovered judgment in the common pleas court on an appeal from the justice's court. Defendant has brought the case here on appeal.

I. The demurrer interposed to the evidence by defendant, at the conclusion of plaintiff's case, should have been sustained. It is expressly declared by statute (section 2839 Revised Statutes), that when such suits are instituted before a justice of the peace, it must be brought, either before some justice of the township within which the injury occurred, or before some justice of an adjoining township. It was distinctly held in Hansberger v. Pacific Railroad Company (43 Mo. 196), that it is a jurisdictional fact which must affirmatively appear of record, that the injury did occur in the township in which the justice sits, before whom the suit is brought. This ruling has been followed ever since by the courts of this state. Haggard v. Railroad Co., 63 Mo. 302; Matson v. Railroad Co., 80 Mo. 229. In Mitchell v. Railroad Company (this same defendant, 82 Mo. 106), it was expressly held, under said ...