| Mo. | Apr 15, 1886
This cause has a remarkable and unusual history. It is an action to recover damages for hogs alleged to have been killed by defendant in operating its road, the hogs having strayed on the road by reason of defendant’s failure to fence along its sides. The suit was brought in 1877, before a justice of the peace in Poplar Bluff township, Butler county, in August, 1877, from whose judgment in plaintiff’s favor an appeal was taken to the circuit court of Butler county, from which county, on defendant’s application, based on
No instructions were asked on either side, and none were given, and the only points relied upon by counsel in his brief for a reversal of the judgment are that the evidence did not warrant the judgment, and that plaintiff, having-sold his interest after the institution of the spit, was not the real party in interest. It is argued that the evidence wholly failed to show that the hogs in question were killed in Poplar Bluff township, and to show that they got on the track of the road at a point where it was not fenced. This point is not well taken. Jordan Ray, whose deposition was read on the part-of plaintiff, testified as follows : “ I know of nineteen hogs being killed on the St. Louis, Iron Mountain & Southern Railroad in the township of Poplar Bluff. The hogs belonged to Asher, and were killed by the trains of defendant. None of them were over twenty or twenty-five feet from the track, and some of them were on the track.” It was shown by the evidence of other witnesses that the hogs for which a recovery was had were killed at a place on the road where it was not fenced, and where defendant was bound to fence, about one mile east of the town of Poplar Bluff. Although the evidence as to the place where the hogs got on the .-rack was not direct the court
It is claimed by counsel that, as it was shown by the, evidence, that plaintiff, after the institution of his suit before the justice, and after he had obtained judgment, and after defendant’s appeal therefrom to the circuit court, had sold his interest to one Chapman, that the suit could no longer be prosecuted -in his name on that account, and that the judgment in his favor is, therefore, erroneous. It is expressly provided by section 3671, Revised Statutes, £ £ That where an interest is transferred in any-action now pending * * * the action shall be continued in the name of the original party, if the party to whom the transfer is made will indemnify the party in whose name the suit is to be continued .against all costs and damages that may be occasioned thereby; or the court may allow the person to whom the transfer is made to be substituted in the action; and in all such cases the party to whom the transfer is made shall be required by the court, upon the application of the party who made the transfer, either to give such indemnity or to cause himself to be substituted in the action, and upon his omission to do so the court shall order the suit dismissed.” If the plaintiff had applied to the court and asked that Chapman be required to give such indemnity, and he had been ordered to do so, and failed, the court would then have been justified in dismissing the suit, and rendering judgment in defendant’s favor. If the plaintiff saw fit to waive his right to demand an indemnifying bond for his own protection, and allow the suit to be proceeded with in his name, it is not a matter of which defendant can complain. In the case of Smith v. Phelps, 74 Mo. 598, it is expressly held that the transfer of title by plaintiff in an ejectment pending the suit will not defeat his right to recover pos
Judgment affirmed,