16 Kan. 583 | Kan. | 1876
The opinion of the court was delivered by
This was an action brought by John Yanz against the Kansas Pacific Railway Company for killing one of the plaintiff’s cows. The act of 1874, (Laws of 1874, pp. 143, 144,) authorizing the recovery of damages and the recovery of attorney-fees in such cases, has already been held by this court to be constitutional and valid. (K. P. Rly. Co. v. Mower, ante, p. 573.) The only question then for us now to consider is, whether under said act, and under the facts of this case, the plaintiff is entitled to recover. The action was commenced in a justice’s court, and the plaintiff filed a bill of particulars therein, which reads as follows:
{Title.) “The said John Yanz, plaintiff, complains of the said Kansas Pacific Railway Company, a corporation operating a railway through the county of Pottawatomie in the state of Kansas, defendant, for that the said plaintiff was, on the 5th of August 1874, the owner of a milch cow of the value of $30, and that the said defendant in operating its railway, and by the engine and cars on the said railway, did kill the said cow of the said plaintiff, to the damage of the said plaintiff $30. And said plaintiff further says, that on the 29th of August 1874 he demanded of said Kansas Pacific Railway Company payment of the damages aforesaid, for said cow killed as aforesaid, which said defendant refused and still refuses to pay.
“Wherefore plaintiff prays judgment for said sum of $30, together with costs of suit, and a reasonable attorney-fee for the prosecution of this suit.”
“The railroad of the defendant, at the time and place where said cow was killed, was not fenced.
“On the 28th of September 1874, the plaintiff commenced his suit before Justice Baker, in Wamego township, for the recovery of said damages. A reasonable attorney-fee for the prosecution of said suit by Messrs. Merritt, his attorneys, was $10; and a reasonable attorney-fee for prosecuting the suit on this appeal by said attorneys, is $25.”
“The defendant objected to any evidence being given of the value of attorney-fees for prosecuting said suit, or to any finding concerning the same, which objection the court overruled, and the defendant excepted.” The court, after making said special findings of fact and law, rendered judgment in favor of the plaintiff for $30 for the cow, $10 for attorney-fees in the justice’s court, $25 for attorney-fees in the district court, and for costs. The defendant now brings the case to this court, and assigns for error that, “ The decision of said judge was contrary to law.” This is the only assignment of error. The defendant however, now, as plaintiff in error, claims in its brief that the bill of particulars of the plaintiff below was not sufficient: First, because it did not allege that the company’s road was not fenced; second, because it did not claim as damages as much as the judgment was rendered for. And plaintiff in error also now claims in its brief, that the findings of the court do not support the judgment for attorney-fees. If these questions can or ought to be considered under said assignment of error, which is at least doubtful, we would have to decide upon all of them against the plaintiff in error. No objection was made in the court below to the
We think the findings of the court below with respect to attorney-fees were sufficient.
The judgment of the court below will be affirmed.