Kelly v. Chicago, Rock Island & Pacific Railroad

86 Mo. 681 | Mo. | 1885

Henry, C. J.

— This suit originated in a justice’s court in Clinton county, and is for the recovery of: double damages for the killing of a mare, the property of plaintiff. The mare was killed in Platte township, where the suit was commenced, and the summons was issued to a constable of that township, who (as is stated in the transcript of the justice), returned the same executed according to law. Not that that was the return made by the constable, but the judgment of the justice that the return of service was what the law-required ; judgment by default was rendered against the defendant in the justice’s court, after which defendant appeared before the justice and filed a motion to set it aside, which was overruled, and defendant prosecuted an appeal to the circuit court. In that court defendant' filed a motion to dismiss the suit, on the ground that the justice had no jurisdiction of defendant’s person,, because the summons was served in Shoal township, and not in Platte township, although defendant, when said writ was issued and served, had a station and station agent in charge thereof in said Platte township.

The defendant’s appearance in the circuit court was-for the purpose of this motion only. The appearance-of defendant in the justice’s court was not a special appearance. The transcript of the justice on that point is as follows: “This twenty-sixth day of March, 1881, comes the defendant by its agent, W. E. Clark, and files motion to set aside judgment by default.” It nowhere-appears, except in an agreed statement of facts submitted with the motion in the circuit court, that the summons was served in Shoal, and not in Platte township. Upon the face of the transcript the justice had jurisdiction of defendant’s person, and if the constable’s return' was false, the defendant had its action for a false return, but the justice’s jurisdiction was complete. The agreed statement of facts should have been disregarded by the-court, which should have overruled the motion and proceeded to try the cause de novo, instead of dismissing it». The case falls within section 3052, of the Revised Statutes, which is as follows:

“Upon the return of the justice being filed in the-clerk’s office, the court shall be possessed of the cause and shall proceed to hear, try and determine the same-anew, without regarding any error, defect, or other imperfection in the original summons or the service-thereof, or on the trial, judgment, or other proceedings-of the justice or constable in relation to the cause.'”

The judgment of the circuit court, dismissing the cause, is reversed, and it is remanded to be proceeded with in accordance with this opinion.

All concur.