85 Mo. 160 | Mo. | 1884
The record in this case shows it to have been a proceeding by the plaintiff herein and against the defendant before a justice. The transcript of the justice of the peace shows that “complaint was filed, sum
The defendant then moved the court to dismiss the suit for want of jurisdiction, and for insufficiency of the amended statement which was as follows: “The plaintiff for amended statement, filed by leave of the court first had and received, avers that the defendant is a cor- ' poration duly incorporated for railway purposes, and as such is now and was on the twenty-eighth day of July, 1881, operating a railroad, running from Sedalia, Pettis county, Missouri, to Lexington, Lafayette county, commonly known and called the Lexington branch of the Pacific railroad, which said road ran through Dover township, in said county; that the defendant failed to erect and maintain along the line of said road, a good and sufficient fence where the same runs through enclosed and cultivated lands in said Dover township, in said county; that on the twenty-eighth day of July, 1881, in Dover township, Lafayette county, Missouri, and not at a public crossing, or within the limits of any incorporated town or city, through the failure and neglect of the defendant, as aforesaid, to erect and maintain its fences, a fine and valuable bull of the plaintiff’s got upon the railroad track of the defendant’s in said Dover township, said county and state, and was by the engine and cars of the defendant then and there run and managed by the 863?“ vants of the defendant in and about its business, so in
The evidence tended to prove the allegations of the statement, and upon cross-examination of the plaintiff, he stated : “I had the bull in Mr. Gordon’s pasture; was pasturing him there. The bull got out of Mr. Gordon’s pasture into Mr. Stewart’s pasture, and from S tewart’s pasture, by passing under the railroad bridge where the fence was down onto the railroad track where the fence was not good.” Upon the close of the evidence the defendant demurred to the evidence, which was overruled, the case given to the jury and there was verdict and judgment for the plaintiff, from which the defendant brings the case here by appeal.
I. Section 2851 of the Revised Statutes, 1879, provides that “no formal pleadings upon the part of either plaintiff or defendant, shall be required in a justice’s court, but before any process shall be issued in any suit, the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of the facts constituting a cause of action upon which the suit is founded.” Section 2852 provides for a dismissal of the suit if no statement be filed. It follows that if there was no statement filed before the justice (and the record shows none), there was nothing on which to base the judgment of the justice, and of course nothing to amend. This would dispose of this case, but taking it for granted some statement was filed with the justice, we deem it best to further remark in the case.
II. The statement as amended we consider suffi