87 Ark. 424 | Ark. | 1908
(after stating the facts). First. No written pleadings are required in a justice’s court nor in the circuit court on appeal from a justice of the peace. Mississippi Valley Const. Co. v. Chas. T. Abeles & Co., ante p. 374; Sparks v. Robinson, 66 Ark. 460.
The written statement of the facts t constituting appellant’s alleged cause of action was sufficiently formal and definite to meet the requirements of sections 4565 and 4580 of Kirby’s Digest as to the necessary statement of facts upon which the action is founded.
The appellant’s written statement of facts, or “complaint,” and the summons based thereon, notified appellee that it (was being sued for the killing of appellant’s cow by one of appellee’s trains, and that for said killing damages were claimed in the sum of.$38, also a penalty of $38, and a reasonable attorney’s fee. These statements were sufficient to admit of proof before the justice as to how appellee incurred and became liable, if at all, for the alleged penalty and attorney’s fee. Bush v. Cella, 52 Ark. 378. Being sufficient in the justice’s court, they were also sufficient in the circuit court, where the cause, on appeal, was for trial de novo.
Formal pleadings are not required before a justice of the peace, and on appeal to the circuit court'a demurrer should not be sustained to the complaint. Chowning v. Barnett, 30 Ark. 560. Even if the written statement were defective in the particulars designated by the court, such defects were of form and not of substance, and the court in no event should have dismissed the complaint (St. Louis, I. M. & So. Ry. Co. v. Moss, 75 Ark. 64; Choctaw, O. & G. Rd. Co. v. Doughty, 77 Ark. 1), but should have allowed appellant to amend and set forth the'particulars wherein it claimed that appellees had incurred the penalty prescribed by the statute.
Second. To refuse to'allow appellant to amend his complaint so as to allege the value of the cow killed to be $50, instead of $38, at that juncture in the proceedings was within the sound discretion of the trial court, and we can not say that the discretion was abused. Birmingham v. Rogers, 46 Ark. 254.
The pleadings in a cause are part of the record proper, and are not 'required to be set forth in 'the bil-1 of exceptions. No bill of exceptions was necessary to bring the error of sustaining the appellee’s demurrer to the attention of this court. The ruling was properly entered of record.
Third. As the cause must be reversed and remanded for new trial, it would be premature to pass upon the question 'of costs.