17 Mo. App. 4 | Mo. Ct. App. | 1885
delivered the opinion of the court.
It is recited in the bill of exceptions that the defendant’s motions for new trial and in arrest of judgment were filed within four days after verdict and judgment; but the record affirmatively shows that the verdict and judgment were rendered on the 23rd of June, 1884, and that the motions for new trial and v in arrest of judgment were filed on the 30th day of August, 1884. These motions were not, therefore, “made within four days after the trial,” as required by the statute. — Rev. Stat. sect. 3707. It follows, upon a well settled rule of procedure, that we can consider nothing except what appears on the face of the record proper.
The case was before this court ón a former appeal (15 Mo. App. 598), and we reversed the judgment which the plaintiff had obtained and remanded the cause because there was no substantial evidence on several material points to support the judgment. The cause was again tried in the circuit court, before the court sitting as a jury, and has again resulted in a verdict and judgment for the plaintiff. On the former hearing in this court, two points were distinctly made by the appellant and pressed upon our attention: 1. That the justice’s transcript failed to show jurisdiction of the cause of action; 2. That it failed to state a cause of action.
1. In the opinion of this court it was said: “The action for injury to cattle is local, the jurisdiction of the justice being confined tó such injuries as arise in his township. It is shown by the statement filed with the justice that he is a- justice of the peace of Merrimac township ; but there is nothing whatever in the evidence from which it can be gathered that the injury to the mule occurred in that township. This, on the authority of State v. Metzger (26 Mo. 65); Iba v. Railroad Company (45 Mo. 475); and other cases, is fatal.” The language quoted above is not strictly correct in its application to the present statute relating to the' jurisdiction of justices
2. The cause of action is stated thus: That the defendant, “ while so operating said railroad did so fail or neglect to maintain any latch, hook, or other fastening upon a gate, prior thereto erected and maintained by defendant in the line of said railroad’s fence, at a necessary farm crossing on said railroad, in said Merrimac
We regret that we feel constrained, in deference to decisions of the supreme court, to reverse this judgment, and because of defects appearing on the face of the record proper which were called to the attention of the court at the former hearing, and which should have been disposed of in the same way then. But the defendant is entitled to insist upon these objections. Neither of them has been waived, and the first one, relating to the jurisdiction of the justice over the subject matter, could not be waived. Whilst this is so, it is matter for congratulation that our law is no longer in such a state as to produce a failure of justice because of such defects in statements in proceedings before justices of the peace. Under section 3060, Revised Statutes, such statements may be amended in the circuit court so as to supply any deficiency or omission therein. — King v. Chicago & C. R. Co., 79 Mo. 328. We have felt some difficulty upon the question whether the first defect above pointed out, which is purely jurisdictional, could be cured by amendment; but this court has held that the power of amendment in the circuit court in proceedings appealed from justices of the peace extends even to the supplying of jurisdictional defects. — Branahl v. Watson, 11 Mo. App. 587; s. c., 13 Mo. App. 596; Keane v. Bartholow, 4 Mo. App. 507-510; Brecht v. Corby, 7 Mo. App. 300, 305. As the above defects may possibly be