Taylor v. Atlantic & Pacific R.R. Co.

• Decision Date: 31 October 1878
• Citation: 68 Mo. 397
• Parties: TAYLOR, Plaintiff in Error, v. ATLANTIC & PACIFIC RAILROAD COMPANY.
• Court: Missouri Supreme Court

68 Mo. 397

TAYLOR, Plaintiff in Error,

v.ATLANTIC & PACIFIC RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1878.

Error to Crawford Circuit Court.

Botsford & Williams for plaintiff in error.

NORTON, J.

This suit was instituted in the Phelps county circuit court at its February term, 1874, to recover $6,000 damages alleged to have been sustained by plaintiff from the act of defendant in obstructing a water-course, whereby the land of plaintiff was overflowed and damaged. Defendant appeared and filed answer, to which plaintiff replied. Afterwards, at the February term, 1875, on the application of defendant, a change of venue was awarded to the Dent county circuit court. A certified transcript was filed in the latter court in March, 1875, and at the April term thereof, 1875, the court made the following order: “Ordered by the court that the transcript in this case be returned to Phelps county.” At the August term, 1875, of the said Phelps county circuit court, defendant appeared and filed his motion to strike out parts of plaintiff's replication, which, by consent, was taken up and sustained. At the same term the venue of the cause was changed, on the application of plaintiff, to the circuit court of Crawford county, in which latter court a certified transcript was filed on the 18th day of September, 1875, and also a motion by defendant to dismiss the suit on the ground that the court had no jurisdiction of the subject matter of the suit. This motion was sustained, and the suit dismissed, and it is from this action of the court that the plaintiff prosecutes his writ of error.

The Phelps county circuit court had undoubted jurisdiction of the parties and subject matter, as shown by the uncontradicted statement of the petition that defendant's road ran through said county, the service of the summons on defendant's agent in said county, and the subsequent appearance of defendant to the action. Dixon v. Hann. & St. Jo. R. R. Co., 31 Mo. 409; Rippstein v. Ins. Co., 57 Mo. 86. It is also clear that the order of the said circuit court changing the venue of the cause to the Dent county circuit court, invested it with jurisdiction. The only question arising on the record is, as to the sufficiency of the order of the latter court, directing the return of the transcript to Phelps county, to reinvest the circuit court of that county with jurisdiction. Wag. Stat., sec. 4, provides that when parties agree in writing, duly filed, upon another county to which the...