Winsor v. Cole , 10 Kan. 620 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This action was commenced originally before a justice of the peace by Edwin Cole as plaintiff, against George H. Winsor, to recover damages to the amount of $195, claimed to have been sustained by Cole by reason of the cattle of Winsor “feeding upon, eating up, and destroying corn and squashes standing and being upon plaintiff’s premises during the month of October 1871.” The defendant made no appearance in the justice’s court. The plaintiff appeared and obtained a judgment for the full amount of his claim. Winsor then carried the case to the district court by petition in error. The district court affirmed the judgment of the justice of the peace, and thereupon defendant Winsor brought the case to this court by petition in error.

Three question are raised or discussed in the brief and argument of the plaintiff in error: First, Was the constable who served the original writ on the defendant in the justice’s court properly and legally appointed and sworn in -as a special oonstable? Second, Is it necessary that a special constable should verify his return to a writ, by oath or affidavit? Third, Was this an “action for trespass on real estate,” within the meaning of § 6 of the justice’s act?

I. We have no means of determining the first question, as the record brought to this court does not contain any evidence upon the subject. It does not even purport to contain all the proceedings of the justice which ought (without a bill of exceptions) to be made a part of the record. The bill of particulars is given in the record, with a certificate of the justice to its correctness. Then comes the summons, with a like special certificate. Then comes a portion of the other proceedings, and the judgment of the justice, with the following certificate, to-wit:

“I hereby certify that the foregoing is a full and correct abstract of a judgment rendered and execution issued by me in the .suit .above entitled.

“ Frank Wise, Justice of the Peace.”

This is all the evidence we have upon the subject. Therefore. from anything that appears in this record the special constable may have been duly and legally appointed and sworn in. There may have been a proper record made of the same at the time, and the plaintiff in error may have chosen not to take a copy of thé same to the district court. The writ was directed by the justice to Jerome Romine, special constable of Sumner county. It was served by Romine as a special constable; and in the absence of anything to the contrary we shall presume he was a special constable duly appointed and qualified..

II. It is not necessary that a special constable who has been legally appointed and qualified under § 172 of the justice’s act, (Gen. Stat., 812,) should verify his return to a writ which he has served by oath or affidavit. He may make the return in the same manner as any other constable.

III. There is nothing in the record brought to this court that shows that this was an “ action for trespass on real estate.” There is nothing in the record that shows that the cattle of the defendant were not running and being on the plaintiff’s premises by agreement of the parties. There is nothing in fact but the plaintiff’s bill of particulars that shows anything about it, and that shows among other things the following:

“,Gteorge H. Winsor to Edwin Cole, - Dr.

“To corn destroyed by cattle belonging to said Winsor during the month of October 1871, $185; to squashes destroyed as above, $10; amount due, $195. The said defendant having abou’t the last of April or first of May 1871, and at various times thereafter, promised and agreed with the said plaintiff to be responsible for and pay to the said plaintiff all damages he the said plaintiff might sustain by reason of said defendant’s cattle eating up and destroying said plaintiff’s corn.”

It -will be noticed that the agreement to pay the plaintiff for the corn eaten up and destroyed by the defendant’s cattle was long before the corn was so eaten up and destroyed.

With reference to the first and third questions raised in this case we would say, as we have said in many others that have come before this court, that before a reviewing court will reverse a judgment of an inferior court for error the error must be clearly, and affirmatively shown. The judgment of the court below is affirmed.

All the Justices concurring.