St. Louis, Iron Mountain & Southern Railway Co. v. Mendenhall , 71 Ark. 133 ( 1902 )

Wood, J.,

(after stating the facts.) Appellant seeks the reversal of a judgment against it for $25:

(1) Because the proof of service of the notice to construct a cattle guard was insufficient. The indorsement purporting to be the certificate of the sheriff, by his deputy, on the back of the notice, showing that he had served the same, was no proof of the service of the notice. Kansas City, P. & G. Ry. Co. v. Lowther, 68 Ark. 238; Kansas City, P. & G. Ry. Co. v. Pirtle Id., 548. This certificate did not affect the question of the service of the notice one way or the other. But the plaintiff testified that “he served a notice upon E. T. Shaw, agent at Greenwood.” This was proof of the service of such notice, and the certificate, not being evidence of anything, could not be used to contradict the plain statement of appellee that “he served the notice.” If the certificate could serve the purpose of proof of service of notice at all, it would only show that the notice in fact was served, and the result would be the same. For it is the fact of service, and not who served, that is material.

(2) Because “the notice did not accurately and sufficiently describe plaintiff’s enclosure.” It was undisputed that appellee’s railway passed through appellee’s enclosure situated upon the southwest quarter of the southeast quarter and the southeast quarter of the southwest quarter, sec. 35, township 7 north, range 31 west. This was the land described in the notice, and the notice plainly directed that the stock guard should be constructed “on the north side of my enclosed land where your railroad enters same.”

It is not pretended that there was more than one enclosure upon the eighty described. It is not possible that this one enclosure could have had more than one north side. It is not pretended that the railway entered the enclosure at more than one point on the north side. The notice was therefore sufficiently definite.

Affirm.