Vaughn v. Missouri Pacific R.R. Co.

• Decision Date: 17 March 1885
• Citation: 17 Mo.App. 4
• Parties: G. B. VAUGHN, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 4

G. B. VAUGHN, Respondent,

v.MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 17, 1885.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Reversed and remanded.

G. PITMAN SMITH, for the appellant.

MITCHELL & HAWKEN, for the respondent.

THOMPSON, J., delivered the opinion of the court.

It is recited in the bill of exceptions that the defendant's motions for new trial and in arrest of judgment were filed within four days after verdict and judgment; but the record affirmatively shows that the verdict and judgment were rendered on the 23rd of June, 1884, and that the motions for new trial and in arrest of judgment were filed on the 30th day of August, 1884. These motions were not, therefore, “made within four days after the trial,” as required by the statute.--Rev. Stat. sect. 3707. It follows, upon a well settled rule of procedure, that we can consider nothing except what appears on the face of the record proper.

The case was before this court on a former appeal (15 Mo. App. 598), and we reversed the judgment which the plaintiff had obtained and remanded the cause because there was no substantial evidence on several material points to support the judgment. The cause was again tried in the circuit court, before the court sitting as a jury, and has again resulted in a verdict and judgment for the plaintiff. On the former hearing in this court, two points were distinctly made by the appellant and pressed upon our attention: 1. That the justice's transcript failed to show jurisdiction of the cause of action; 2. That it failed to state a cause of action.

1. In the opinion of this court it was said: “The action for injury to cattle is local, the jurisdiction of the justice being confined to such injuries as arise in his township. It is shown by the statement filed with the justice that he is a justice of the peace of Merrimac township; but there is nothing whatever in the evidence from which it can be gathered that the injury to the mule occurred in that township. This, on the authority of State v. Metzger (26 Mo. 65); Iba v. Railroad Company (45 Mo. 475); and other cases, is fatal.” The language quoted above is not strictly correct in its application to the present statute relating to the jurisdiction of justices of the peace. This statute provides: “Any action against a railroad company for killing or injuring horses, mules, cattle, or other animals, shall be brought before a justice of the peace of the township in which the injury happened, or any adjoining township.”--Rev. Stat. sect. 2839, clause 5. In the case of Iba v. Hannibal & C. R. Co. (45 Mo. 469, 475), it was held not to be sufficient in an action against a railroad company for killing animals commenced before a justice of the peace, that it might be gathered from the evidence that the injury occurred in the township of which the justice before whom the action was brought was a justice, but that the record proper must show the fact. We regret to find, upon an examination of the record proper in this case, that it nowhere shows that the mule, for the killing of which this action was brought, was killed either within Merrimac township, of which township the justice of the peace before whom this action was brought, was a justice, or that it was killed in an adjoining township. It does show that the defective gate in the defendant's fence, through which the plaintiff's mule strayed upon the defendant's railroad, was situated in Merrimac township; but it nowhere shows in what township the mule was killed. No doubt it would be a somewhat strained presumption that the animal had wandered beyond the limits of an adjoining township before being run over by the defendant's train, as alleged. But, on the authority of the case just cited and that of State v. Metzger (26 Mo. 65), we do not see any escape from the conclusion that the defendant is entitled to judgment, on the ground that the justice's transcript fails to show jurisdiction of the cause of action, unless the defect can be cured by amendment.

2. The cause of action is stated thus: That the defendant, “while so operating said railroad did so fail or neglect to maintain any latch, hook, or other fastening upon a gate, prior thereto erected and maintained by defendant in the line of said railroad's fence, at a necessary farm crossing on said railroad, in said Merrimac township, about one-half mile east of Eureka, a...