St. Louis, A. & T. Ry. Co. v. Shelton
| Decision Date | 18 March 1893 |
| Citation | 21 S.W. 876 |
| Parties | ST. LOUIS, A. & T. RY. CO. v. SHELTON. |
| Court | Arkansas Supreme Court |
Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.
Action by James Shelton against the St. Louis, Arkansas & Texas Railway Company for killing cattle. Plaintiff obtained judgment. Defendant appeals. Affirmed.
Bunn & Gaughan and Sam. H. West, for appellant. E. F. Friedell, for appellee.
Shelton sued the railway before a justice of the peace to recover the value of two head of cattle, which he alleged were killed by the company's moving cars. He filed a complaint, caused a summons to issue, and got judgment by default. The railway sued out a writ of certiorari, and caused the judgment to be quashed upon the ground that the return of service upon the summons was fatally defective. The justice then issued another summons; judgment was again rendered for the plaintiff, — first by the justice, and then on appeal to the circuit court. This appeal is from the last-mentioned judgment. The only contentions here are that the suit was barred by limitation when the second summons issued, and that the evidence is not legally sufficient to sustain the judgment.
1. The suit was not begun by issuing the alias summons, but by filing the complaint and issuing the summons in the first instance. The first summons was issued within the period of limitation prescribed for such suits. The cause was therefore not barred.
2. The bill of exceptions sets forth merely that the two head of cattle were found together dead on the railroad track. No other circumstance is detailed from which we can draw an inference of the cause of death. It is argued that the case comes within the rule announced in the case of Railway v. Sageley, 56 Ark. 520, 20 S. W. Rep. 413, — that there is no proof that the trains of the railway killed the cattle; that there is nothing, therefore, for the statutory presumption of negligence to rest upon; and that the judgment cannot be sustained. The answer is that the bill of exceptions purports to set forth only the "substance" of the evidence, — the "substance" of all the evidence. Where a defect of proof is the ground of exception, rule 13 of this court requires that "all the evidence offered, in any wise connected with such supposed defect, shall be set out in the bill of exceptions." In the case of Railway Co. v. Washington, 4 U. S. App. 131, 1 C. C. A. 286, 49 Fed. Rep. 347, Judge Caldwell, in delivering the opinion...
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Stivers v. Pacific Bldg., Inc., 80-45
...serve the summons nor defective service prevented commencement of the suit by issuance of the original summons. St. Louis Ark. & Tex. Ry. Co. v. Shelton, 57 Ark. 459, 21 S.W. 876; Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577. See also, Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929. The statut......
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......Gulf,. C. & S.F. Ry. Co. v. Washington, 4 U.S.App. 121, 131, 1. C.C.A. 286, 49 F. 349; Railway Co. v. Shelton, 57. Ark. 459, 21 S.W. 876. Such a mode of stating the evidence is. proper enough when its only purpose is to show there was. sufficient evidence ......
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Railway Co. v. Shelton
...21 S.W. 876 57 Ark. 459 RAILWAY COMPANY v. SHELTON Supreme Court of ArkansasMarch 18, 1893 . Appeal. from Miller Circuit Court, RUFUS D. HEARN, Judge. . . Action. by James Shelton against the St. Louis, Arkansas & Texas. Railway Company. The facts are stated in the opinion. . . . Affirmed. . . Bunn & Gaughan and Sam H. West for appellant. . . 1. The. suit was barred. The issuance of the alias summons was the. beginning of a new ......