Wright v. Hannibal & St. Joseph Railroad

Action — Suit for Killing Stock Under Section 809, Revised Statutes — Adjoining Township. — Where' stock is killed by a railroad in one township, suit may be brought in another township if the townships are adjoining. But there must be proof of such fact on the trial.

Appeal from Clinton Circuit Court, Hon. G-eorge W. Dunn, Judge. The case is stated in the opinion. I. When suit is brought for double damages, it must be before the justice of the peace within the township where the injury occurred, or before some justice of an adjoining township. Rev. Stat. 1879, sect. 2839. This is a jurisdictional fact,' which must affirmatively appear of record, that the injury did occur in the township in which the justice before whom it is brought holds office. Hansberger v. Railroad, 43 Mo. 196. Or, the evidence must show that the animal was killed in a township adjoining that of the justice, before whom suit is brought. Mitchell v. Railroad, 82 Mo. 106 ; Haggard v. Railroad, 63 Mo. 302; Matson v. Railroad, 80 Mo, 229. There is no proof that Lathrop township adjoins Jackson township. Nor is it so much as alleged in the complaint. “The statement must aver the jurisdictional fact, and the bill of exceptions must show that proof thereof was made.” Roberts v. Railroad, 19 Mo. App. 650 ; BacJcenstoe v. Railroad, 86 Mo. 492 ; Palmer v. Railroad, 21 Mo. App. 438. II. The court erred in giving the instruction asked by plaintiff. The court had no jurisdiction under the evidence. Cases supra. There was no evidence that plaintiff’s stock was killed by defendant’s engine and cars, and there was no evidence that it was struck at a point on defendant’s track; nor that its track passes through the township where the stock was killed; nor that it failed to erect and maintain good fences / nor that plaintiff’s stock entered any enclosure belonging to defendant or others. There is total failure of proof both as to the jurisdiction of the justice, and as to these matters of substance.