Union Pacific R. Co. v. Ogilvy
| Decision Date | 06 January 1886 |
| Parties | UNION PACIFIC RAILWAY, PLAINTIFF IN ERROR, v. LYULPH OGILVY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lincoln county. Tried below before HAMER, J.
REVERSED AND REMANDED.
A. J Poppleton and J. S. Shropshire, for plaintiff in error.
Neville & Heist, for defendant in error.
This action was brought in the county court of Lincoln county by the defendant in error against the plaintiff to recover the sum of $ 990.00 damages, for injury to and killing twelve head of horses and mules by a train of the plaintiff. An appeal was taken to the district court from the judgment of the county court, and the plaintiff below thereupon amended his petition claiming damages therein in the sum of $ 1,380. The answer of the railroad company consists of certain denials of the facts stated in the petition, and an allegation of contributory negligence on the part of the plaintiff below. On the trial of the cause the jury returned a verdict of $ 1,380.00, upon which judgment was rendered.
The first objection of the plaintiff in error is to the amendment of the petition beyond the jurisdiction of the county court which is limited in civil actions to sums not to exceed $ 1,000. The rule is well settled that if the court in which the action is brought has no jurisdiction of the subject matter, the appellate court will acquire none by the appeal. Brondberg v. Babbott, 14 Neb. 517, 16 N.W. 845. Cooban v. Bryant, 36 Wis. 605. Stringham v Board of Supervisors, 24 Wis. 594. Felt v. Felt, 19 Wis. 193. Malone v. Clark, 2 Hill 657. Stephens v. Boswell, 25 Ky. 29, 2 J.J. Marsh. 29. And this, too, even if the appellate court would have jurisdiction of the subject matter had the action been commenced there. The reason is, an appeal is a mere continuation of the original case, a proceeding in the action. Aulanier v. Governor, 1 Tex. 653. Hough v. Leonard, 12 Ill. 456. Hatch v. Allen, 27 Me. 85. The want of jurisdiction of the subject matter in the court where the action was brought continues in every court to which the action may be appealed, for the reason that it is the same action, and an appeal is authorized only where the court from which the appeal is taken, in case of the failure to appeal, would have had authority to enforce its judgment. It will not be claimed that the county court of Lincoln county could render judgment for more than $ 1,000. That is the limit of its jurisdiction. Comp. Stat., Chap. 20. The plaintiff below, in bringing his action in the court, well knew that in no event could he recover a greater sum. This was the limit of the power of the court. When appealed, therefore, it is the same case, and to be tried upon substantially the same issues as in the county court. If this were not so all actions might be brought in the county court or before a justice of the peace, and upon appeal to the district court the real cause be stated and tried.
To call such a proceeding an appeal would be an incorrect use of language, and the proceeding itself the abuse of a right. We hold, therefore, that the power of amendment of the appellate court is limited to the highest sum which the court from which the appeal was taken was authorized to render judgment, and accrued interest.
2. The testimony shows that on the morning of the 11th of March, 1884, one Louis Bryant left North Platte with about 60 head of mules and ponies belonging to the defendant in error, intending to drive them to an irrigating ditch then being constructed at or near O'Fallons. The public road on which he was driving these animals for several miles west of North Platte runs north of and nearly parallel with the Union Pacific Railway. From four to six miles west of North Platte--the exact distance does not appear, a stream of water (called a slough in the testimony) crosses the railway and public road. There was no bridge over this stream on the line of the public road, and on the morning in question the stream was covered with ice, the character of which does not appear. The stream crosses the railway a few rods west of the point where it crosses the public road, and there was also a ditch 2 1/2 feet wide, filled with water, between the public road and the railway. The stream or slough at the point where the public road crosses it is forty-two feet in width. This stream, the map introduced in evidence shows, flowed north of and nearly parallel to the public road for some distance east of the point of crossing. Bryant seems to have had no trouble in driving the animals in question, but when near the point of crossing,--the exact distance does not appear,--on looking back he saw a freight train going west on the railroad at a speed of fifteen to eighteen miles per hour, the train being less than half a mile away. To this point there is no material conflict in the testimony. In regard to what was done by Bryant upon seeing the train there is a conflict. Bryant testifies that the mules refused to cross the ice and the drove split in two, part going upon the railroad track, and that he followed and got ahead of them to drive them off, but that he was unable to do so because of the approach of the train. Mr. Brown, the fireman on the engine, testifies:
"We were about a mile from the mules when we first saw them; Mr. Crusen, the engineer, asked me what they were, I told him I thought they were mules that belonged to the ditch company; as soon as the man that was with them saw us he started up on the outside of them and rushed across the track just ahead of the engine."
Q. Did you see him rush up on to them with...
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