Transier v. St. Louis, Kansas City & Northern Railway Co.

Napton, Judge,

delivered the opinion of the court.

This suit was commenced before a justice of the peace, and was for damages for killing plaintiff’s horse. There was a judgment by default rendered by the justice, and that judgment, the defendant moved to set aside, because there was no sufficient service of the writ. The return of the constable, was: “ I hereby certify, that I have executed the within writ by reading the same, and delivering a copy of the same to Buckley Levesay, the depot agent at Warrenton, Mo., the 29th July, 1872, in Elkhorn Township, Warren county, Missouri,” signed, J. K. Speed, constable.

This motion was overruled by the justice, and the case appealed to the Circuit Oourt; but the appeal was not taken on the day the judgment was rendered.

When the case was taken up in the Circuit Oourt, the defendant renewed rfes motion to dismiss for want of jurisdiction in the justice, and the plaintiff thereupon had leave to amend the constable’s return, and insert the words “ of the St. Louis, K. O., & N. B. B. Go.,” after the words “ depot agent,” and the motion to dismiss was overruled.

The defendant then moved for a continuance, because the *191 plaintiff had failed to enter his appearance on the docket before the second day of the term, and this motion was also overruled.

The case was tried, and a verdict and judgment rendered tor the value of the horse.

On the trial, the court allowed the plaintiff, in order to establish his allegation that defendant was a corporation, to read the appeal bond as prima facie evidence of that fact, in which bond the said defendant was a party by its corporate name, signed by its president and secretary.

We see no objections to the amendment of the return on the writ, allowed in the Circuit Court. That court had the power to do whatever the justice might do. We doubt if any amendment was necessary in this case, since the return implied that the depot agent, on whom it was served, was the agent of defendant. However that may be, the amendment in conformity to the fact was no error. There was no error in allowing the bond of the defendant to be used in evidence to prove its corporate existence.

Under the decision of this court, however, in Nay vs. Han. & St. Jo. R. R. Co., 51 Mo., 505 , the appellant had a right to a continuance, as the appellee had failed to enter his appearance on or before the second day of the term. It was held in that case, that, unless by consent of both parties, the case could not be tried at the first term.

The judgment must therefore be reversed and the cause remanded.

The other judges concur.