Sublette v. St. Louis, I.M. &. S. Ry. Co.

• Decision Date: 04 August 1902
• Court: Missouri Court of Appeals
• Parties: SUBLETTE v. ST. LOUIS, I. M. &. S. RY. CO.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 745

96 Mo. A. 113

SUBLETTE v. ST. LOUIS, I. M. &. S. RY. CO.¹

Court of Appeals at St. Louis, Missouri.

August 4, 1902.

RAILROADS — STOCK KILLING — CHARTER PROVISION AS TO TRIBUNAL — TRANSFER — JUDGMENT LIEN — EXPIRATION — REVIVAL BY SCIRE FACIAS — LIMITATIONS — COMPUTATION OF PERIOD — EFFECT OF APPEAL — JURISDICTION OF JUSTICE OF THE PEACE.

1. An exemption from taxation is not transferable without express legislative authority, nor does it pass by a conveyance of the "property and franchises" of the transferring company. The exemption or immunity granted to the North Missouri Railroad by section 3 of the act of 1865 (Laws 1865, p. 89), concerning actions for stock killing, is subject to the same limitations as to transfer.

2. The lien of a judgment expires at the end of three years from its rendition, even although an appeal with supersedeas may stay the execution during that entire period.

3. A suit upon a judgment of a justice of the peace is barred by limitation after 5 years by the Missouri statute (Rev. St. 1899, § 4273), but a scire facias to revive the judgment will lie at any time within 10 years.

4. An appeal by defendant having been taken from a justice's judgment was dismissed by the circuit court, whereupon defendant appealed from the dismissal, and the appellate court affirmed that judgment. Held, that the statute of limitations did not begin to run against the justice's judgment until the affirmance aforesaid.

5. An appeal from a justice's judgment vacates it until the appeal is disposed of, but on dismissal of the appeal the justice's judgment becomes a finality.

6. A justice of the peace in 1883 had jurisdiction over an action for $125 damages for the killing of stock, under the general laws of Missouri.

7. The case at bar is distinguished from Daniels v. Railroad Co., 62 Mo. 43, relieving the court from deciding how far the authority of the latter case may be qualified by later Missouri decisions.

(Syllabus by the Judge.)

Appeal from circuit court, St. Louis county; John W. McElhinney, Judge.

Action on judgment by Thomas E. Sublette against the St. Louis, Iron Mountain & Southern Railway Company. From an order granting a new trial after judgment for defendant, defendant appeals. Affirmed.

G. S. Grover, for appellant. D. C. Taylor and R. H. Stevens, for respondent.

BARCLAY, J.

This case comes here by appeal from an order granting a new trial to the plaintiff. No controverted facts are involved. The history of the controversy is fairly given in appellant's statement, which we adopt in great part. May 21, 1883, plaintiff's bull was killed by one of defendant's trains in Adair county, Mo. September 8, 1883, suit was brought by plaintiff against defendant before a justice of the peace of Adair county to recover $125 damages for the killing of said bull. September 22, 1883, on due and proper service, a judgment by default was rendered against defendant in favor of plaintiff for $125 and costs. An appeal was perfected in said cause by defendant September 27, 1883, to the circuit court of Adair county, where the following result was reached December 12, 1883: "Now, at this day, comes the plaintiff herein, by attorney, and it appearing to the satisfaction of the court that this cause is not properly on the docket, and that this court has no jurisdiction of the subject-matter herein, it is therefore ordered by the court that this cause be, and is hereby, stricken from the docket." December 13, 1883, defendant moved to set aside the last order and to dismiss. April 16, 1884, the last-mentioned motions were overruled, 60 days' time was allowed to file bill of exceptions, and an appeal, with stay bond, was duly taken by defendant to the supreme court of Missouri. October 19, 1894, defendant filed application in Adair circuit court to amend record nunc pro tunc by substituting the name of defendant for that of the Wabash, St. Louis & Pacific Railway Company, which appeared in the original records of that court. October 22, 1894, the order nunc pro tunc, as prayed, was granted. In May, 1894, the plaintiff instituted a suit on said judgment in the circuit court of St. Louis county, Mo. The cause was tried before Hon. Rudolph Hirzel, circuit judge, on the 31st day of May, 1895. July 9, 1895, said circuit judge, sitting as a jury, entered a judgment in favor of the plaintiff for $217.20. From this judgment the defendant perfected an appeal to this court. April 21, 1896, the judgment below was reversed, and the cause remanded, on the ground that the pending appeal to the supreme court precluded a suit on the judgment of the justice. Sublette v. Railway Co. (St. L.) 66 Mo. App. 331. That suit was subsequently dismissed in the circuit court of St. Louis county. In April, 1898, the plaintiff filed a motion in the supreme court of Missouri to affirm the judgment in the Adair county case, but the supreme court transferred the cause to the Kansas City court of appeals. November 7, 1898, the latter court, after stating the case, said: "It is clear we cannot grant the prayer of plaintiff's motion. After stating a brief history of the case, the plaintiff `moves the court to affirm the judgment below, with directions for enforcement, and that the supreme court (now this court) order execution to issue in favor of plaintiff and against defendant for $125, with interest at six per cent. per annum from September 23, 1883, and for costs.' This cannot be done. This court can only affirm the judgment of the Adair circuit court, nothing more. That judgment simply dismissed the appeal from the justice, and left the judgment of the justice standing as it was before defendant took its appeal from the justice. The judgment, then, of the circuit court of Adair county, dismissing defendant's appeal, is hereby affirmed." Sublette v. Railway Co. (K. C.) 76 Mo. App. 480-482. In December, 1898, the plaintiff took a transcript of the justice's judgment, filed it in the office of the circuit clerk of Adair county, and had an execution issued to St. Louis county, where certain of defendant's property was levied on. Defendant filed a motion to quash said execution in the circuit court of Adair county, although it appeared that the judgment had never been revived. That court overruled said motion, and defendant perfected an appeal to the Kansas City court of appeals. It also obtained an injunction proceeding in the same court, whereby the plaintiff and the officers of Adair and St. Louis counties were restrained from proceeding further with said cause, pending said appeal. The cause was reversed and remanded in the Kansas City court of appeals on the 30th day of October, 1899. Sublette v. Railway Co. (K. C.) 81 Mo. App. 327. August 21, 1900, the action now at bar was begun in the circuit court of St. Louis county, Mo., by a petition in ordinary form, on the original judgment of the justice in Adair county. The answer set forth a history of the case, in substance as above, asserted a want of jurisdiction in the justice to render the judgment, and further set up the statute of limitations. On the trial the following facts, in addition to those already mentioned, were given in evidence. On the 3d day of March, 1851, the North Missouri Railroad Company was incorporated under a special charter from the state of Missouri, and authorized to construct and operate a line of railroad from St. Charles to the northern boundary line of the state, passing through Adair county, Mo. This charter was amended on the 7th day of January, 1853, so as to authorize that company to construct and operate a railway from St. Charles to any point in the city of St. Louis, and also to construct lateral or branch roads to any point. This charter was again amended on the 18th day of February, 1865. Acts 1865, Mo. p. 89. Section 3 of the last-named act was as follows: "Sec. 3. That justices of the peace shall have jurisdiction to the same extent over this company in all actions of trespass for killing stock which they now have over natural persons, and they shall have and exercise no other jurisdiction than as above provided." Under these provisions, the North Missouri Railroad Company constructed its line of railroad in Adair county, Mo.

Defendant claims that by virtue of a mortgage of the North Missouri Railroad Company dated October 1, 1868, and conveyances thereunder, the defendant acquired the franchises and immunities of that company, and especially acquired the benefit of section 3 of the said act of 1865, amendatory of the charter of said company. Those documents appear from the abstract to have been introduced in evidence in this cause in the trial court, but their terms are not before us here further than that their effect is said by appellant to be to pass the charter rights of the North Missouri Railroad Company to the Wabash Company, the lessor of defendant May 10, 1883, said lessor, the Wabash, St. Louis & Pacific Railway Company, leased its lines of railway, including the line purchased from the North Missouri Railroad Company, to the St. Louis, Iron Mountain & Southern Railway Company, the defendant. By the express terms of that instrument, all of the powers and franchises of the lessor passed to the lessee, the defendant, by this language: "The party of the second part (the St. Louis, Iron Mountain & Southern Railway Company) shall have, use, exercise, and enjoy all the rights, powers, and authority, aforesaid, and all other lawful powers and privileges which can, or may be, lawfully exercised and enjoyed on and about the said demised railroad property, as exclusively, fully, and amply as the same might or could have been used, exercised, and enjoyed by said party of the first part (Wabash, St. Louis & Pacific Railway Company) had this lease or contract not have been made, and as exclusively, fully, amply, and entirely as said party of the first part have authority by law to grant the same." It was admitted that the Iron...