Hansberger v. Pacific Railroad

1. Justices’ Courts — Appeal, what cause of action tried upon.— Where an action of damages against a railroad company was originalty brought before a justice of the peace, under the common law, for negligence in killing stock, and on appeal to the Circuit Court an amended statement was filed under the provisions of $ 6, ch. 51, It. O. 1855: held, that the whole cause of action was changed, and, under the statute concerning appeals from justices of the peace, the same was properly stricken out on motion. 2. Justices’ Courts — Venue — Jurisdiction. — When a justice’s court proceeded under an act which declared that all suits brought thereunder should be tried in the township where the injury complained of was committed, that fact should appear on the face of the papers, in order to confer jurisdiction.

Error to First District Court. I. The complaint before the justice, and tbe issue on tbe trial in tbe Circuit Court as presented by tbe record, was a common law action for killing stock, whereas tbe instructions given by tbe court assumed that tbe action was brought under section 5, chapter 51, R. C. 1855, p. 649. ( Vide 31 Mo. 399; 34 Mo. 177, 242.) Tbe plaintiff below, discovering that be could not recover on the statement of bis cause of' action filed with tbe justice of tbe peaefe, attempted to relieve tbe case from embarrassment and remain in court by filing in tbe Circuit Court an amended statement changing tbe cause of action from one at common law, for negligently running and managing tbe locomotive by which tbe stock was killed, to one under section 5, chapter 51, R. C. 1855, where tbe question of negligence as presented in tbe justice’s court did not arise at all. He could not do this ; for “the same cause of action, and no other, that was tried before tbe justice shall be tried before tbe appellate court on appeal.” (R. C. 1855, § 18, p. 975.) And while, by section 36, p. 945, R. C. 1855, tbe statement may be amended on motion, yet it is to be observed that Ibis right is limited to tbe justice’s court. When tbe case is appealed, section 18, p. 975, comes in and says: “Here in the Circuit Court the case must be tried as it comes up on the transcript; there is no power to amend in this court.” I. The amended statement presented an entirely different cause o£ action. It changed the liability and rights of the defendant below, the character of the proof necessary, and the law as applicable to the case appealed to the Circuit Court. (22 Mo. 402 et. seq.; 11 Mo. 109 ; 30 Mo. 488; 39 Mo. 498; 2 Mo. 12, 13.) 2. The suit instituted before the justice of the peace was on a common-law right of action, and could have been prosecuted at any time within five years after the cause of action accrued. The amended statement filed in the Circuit Court was on a statutory cause of action under section 5, chapter 51, R. C. 1855. By section 6 of chapter 51 it is provided that all actions instituted under said section 5 “shall be commenced within one year after the cause of such action shall accrue.” Now, the cause of action sued on .at bar accrued in May and July, 1864; while the statement of the cause, which attempts to subject’ the defendant below to liability under said section 5, was 'not filed until April, 1866 — nearly two years after the cause of action accrued. Did not the amended statement, then, affect the substantial rights of the defendant below? Can a party, by such a manoeuver in the appellate court, revive a cause of action already barred by the statute of limitations ? ( Vide 40 Mo. 254, 256.) II. The motion to dismiss was properly sustained, because it did not appear from the record in the case that the justice had jurisdiction of the cause of action or the amount sued for. This action is for injury to personal property. By section 3, chapter 90, R. C. 1855, justices of the peace have jurisdiction only in such cases under fifty'dollars, whereas the sum sued for in the action at bar is one hundred and seventy dollars. If it were the intention of plaintiff to avail himself of an act to extend the jurisdiction of justices’ courts, to be found on page 23, Sess. Acts 1860 — 1, he has failed to bring himself under the protection of its provisions. Section 2 of said act declares that “ all suits arising under this act shall be commenced before some justice of the peace of the township in which the injury complained of was committed.” It is, then, most manifest that, whilst under the provisions of this special act justices of the peace can exercise jurisdiction i'n actions against railroads for killing stock, regardless of the amount sued for, this jurisdiction is nevertheless restricted to injuries committed in the township where the .justice exercising jurisdiction resides-. Beyond the line bounding his municipality he has no extraordinary jurisdiction. It becomes necessary, therefore, that the transcript from the justice’s court, or the pleading in the cause, should show affirmatively that the injury complained of was committed in the township where suit was instituted. “Nothing is intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.” (Peacock v. Bell el al., 1 Saund. 74 b.; Walker v. Turner, 9 Wheat. 548-9; 4 Mass. 641-3; 26 Mo. 65, 601; Gould’s Plead, ch. 5, § 18, p. 218; Bac. Abr. PI. Eq. 526; 27 Mo. 184.) The Circuit Court committed manifest error in striking out the amended petition of plaintiff and in dismissing his suit, and its judgment was rightfully reversed. (Gen. Stat. 1865, p. 708, § 36 ; Walker v. Harper, 33 Mo. 592.)