Haggard v. Atlantic & Pacific Railroad

63 Mo. 302 | Mo. | 1876

Sherwood, Judge,

delivered the opinion of the court.

The complaint filed with the justice is in this form:

Plaintiff states that on the morning of the 6th day of August, 1878, an eastward bound train ran over and damaged and left in a dying condition, a certain heifer belonging to plaintiff of the value twenty dollars, for which he asks judgment,

James Haggard, Plaintiff.

This was filed with one of the justices of New Haven Township, Franklin County.

Summons thereupon issued, directed to the constable of that township, commanding him to summon the defendant “ to appear before the undersigned justice of the peace of New Haven Township in Franklin County on the 10th day of September, 1873,” etc., etc. The writ was served on the defendant in that township, both parties appeared, a trial was had resulting in a judgment for the plaintiff, and defendant appealed to the Franklin Circuit Court, where the plaintiff, against the objection of the defendant, was permitted to file an amended statement, which alleged that the heifer was killed in the township above mentioned. The court, prior to this, had overruled the motion of the defendant'to dismiss the cause on account of the absence in the original statement of the allegation which the amended statement supplied. A trial was had resulting in a verdict for plaintiffs, and defendant is again an appellant.

It is only necessary to notice one of the points to which attention has been called, and that is the one raised by defendant’s motion to dismiss the cause. This motion should have prevailed. Plaintiff does not attempt to defend the action of the court in permitting the amended statement to be filed, but insists that it is sufficient that the writ shows' that the action was commenced in the township and county wherein the killing occurred.”

The writ, however, does not show this. It only shows that it was issued by a justice of New Haven township, and was directed to and served by a constable of that township, and within that township. Nothing more. The writ, indeed, ascertains the locus in quo of the justice, but not of the heifer. And since it nowhere appears in the transcript that the killing occurred in the township where the action was brought, and since also the amended statement could not supply this defect and could not confer jurisdiction where none existed before, it follows that this case falls within the rule so often adverted to by this court, that the jurisdiction of courts of inferior and limited powers must somewhere appear on the face of their proceedings ; otherwise their acts are void.

The result is, that the judgment must be reversed j

Judge Wagner absent; the other judges concur.