43 Mo. 196 | Mo. | 1869
delivered the opinion of the court.
Plaintiff commenced his action against the defendant, before a justice of the peace in Pettis county, by filing his written statement claiming damages for the killing of stock. A trial was had, and verdict and judgment were rendered in his favor. Defendant appealed to the Circuit Court, and while the cause was pending in that court the plaintiff filed an amended statement. Subsequently the defendant filed a motion to strike out the amended statement and to dismiss the action, for the reason that the amended statement contained another and different cause of action from that tried in the justice’s court and
The original statement filed with the magistrate was in the nature of a declaration at common law, and devolved on the plaintiff the burden of proving negligence in the defendant before he could succeed in maintaining his action. The amended statement was filed under the provisions of the fifth section of chapter 51, Revised Code 1855, which declares that when any animal or animals shall be killed or injured by the cars, locomotive, or other carriages used on any railroad in this State, the owner of such animal or animals may recover the value thereof in an action against the company or corporation running such railroad, without any proof of negligence, unskillfulness, or misconduct on the part of the officers, servants, or agents of such company; but this section shall not apply to any accident occurring on any portion of such road that may be inclosed by a lawful fence, or on the crossing of any public highway.
Now, in an action against a railroad company for negligence in killing stock, the plaintiff must either prove actual negligence or show the facts from which the law raises the inference of negligence. (Calvert v. Hannibal & St. Joseph R.R. Co., 38 Mo. 467.) In a common-law proceeding, negligence is a fact necessary to be established by the party alleging the injury. Under thfe statute, negligence is a presumption or conclusion of law.
The statute is positive that, upon an appeal from a justice of the peace to the Circuit Court, the case must be tried anew upon the same cause of action that was tried before the justice.
It is evident that the whole cause of action was here changed. Instead of a common-law action, it was based on a’statutory provision, clothed with new incidents and requiring different proofs. Clark v. Smith, 39 Mo. 498, is precisely in point, and decisive authority in this case.
A question was also raised as to the jurisdiction of the justice’s court. The amount claimed was one hundred and seventy dollars,
There is no principle of law better settled than that inferior courts not proceeding according to the course of common law are confined strictly to the authority given, and it must appear on the face of their proceedings that they have jurisdiction. It was so held by this court in The State v. Metzger, 26 Mo. 65, and the point was again adjudged at the last October term, 1868. Indeed, it is useless to cite authorities to sustain the position, for such has been the recognized law from the earliest period, and we are not advised of any well-considered case to the contrary. If the action was brought before a justice of the township where the wrong complained of occurred, that fact should have appeared upon the face of the papers in order to confer jurisdiction.
My conclusion is that the judgment should be reversed and the cause remanded.
