Winsor v. Goddard , 10 Kan. 625 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

This action was commenced originally before a justice of the peace by Byron S. Goddard and George W. Goddard as plaintiffs against George H. Winsor, to recover damages to the amount of $295 claimed to have been sustamed by said plaintiffs by reason of the cattle of tlie defendant Winsor “feeding upon, eating up and destroying corn and pumpkins growing, grown, and standing upon the N.E.£ of sec. 30, and the N.W.J of see. 32, all in township 32 south, range 2 east of the sixth principal meridian, in Sumner county, during the spring, summer and autumn of 1871.” The questions of law and fact involved in this case are almost identical with those involved in the case of Winsor v. Cole, just decided, (ante, 620.) About the onfy differences between the two cases are the following: In this case the defendant’s cattle ate up and destroyed “corn and pumpkins, growing, grown and standing upon” certain premises not shown or claimed to have been owned by the plaintiffs or by any one else, “during the spring, summer, and autumn of 1871.” In the other case the defendant’s cattle ate up and destroyed “ corn and squashes standing and being upon the plaintiff’s premises,” “during the month of October 1871.”

In this case the record shows that the justice appointed the special constable who served the original writ about one month before this suit was commenced, while in the other case no such appointment is shown.

We do not think it is necessary to consider whether said appointment is valid'or not, for in this case (as in the other case) there is nothing to show that the constable was not appointed specially to serve the summons issued in this case. The transcript does not purport to contain all the proceedings of the justice. For the reasons given in the other case the judgment of the court below in this case must be affirmed.

All the Justices concurring.