71 Mo. 582 | Mo. | 1880
The demurrer to the answer was well taken. No authority on the part of the township board of Hurricane township to make the order under which the defendant attempted to justify was set forth in the answer. Township organization never existed in this State, except when adopted by the vote of the people of the county. Sess. Acts 1878, p. 97. Consequently, judicial cognizance of such vote having been had and such organization, effected, could not be taken. The answer simply pleads, as a defense to the injury complained of, that it was done by order of the township board of Hurricane township. Had the answer complied with the requirements of section 42, p. 1020, 2 W. S., which section provides that, “in pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction; but such judgment or determination may be stated to have been duly given or made,” it would not have been open to the objections which were successfully urged. But no such general allegations were made, nor was it stated that such special facts existed as conferred jurisdiction. Of course, if jurisdiction existed in the township board, their order, under the cases cited by defendant, would be a full protection. But several of those cases also assert the equally familiar doctrine that, where n.o such jurisdiction of the subject matter exists, the order, mandate or execution affords no protection to the officer who assumes to obey the unwarranted command. Here, the answer made no general allegations respecting jurisdiction of the township board, nor were any facts alleged from which such jurisdiction could even be reasonably inferred. Therefore, judgment affirmed.
