St. Louis & San Francisco Rly. Co. v. Byron , 24 Kan. 350 ( 1880 )

The opinion of the court was delivered by

Horton, C. J.:

On November 13,1879, the defendant in error brought his action under the stock law of 1874, before a justice of the peace in Crawford county, to recover damages for the killing of a mare belonging to him. Judgment was rendered by the justice of the peace against the plaintiff in error, from which judgment an appeal was taken to the district court. The case was tried at the April term, 1880, of the district court of Crawford county. The plaintiff in error objected to the introduction of any evidence, on the ground that no cause of action was stated in the bill of particulars or petition. The objection was overruled by the court. This was error. The statute requires that the action shall be brought in the county in which the animal was killed, and there is an entire omission of any such allegation in the complaint. No cause of action was stated. (K. P. Rly. Co. v. Taylor, 17 Kas. 566; Hadley v. Central Branch Union Pacific Rld. Co., 22 Kas. 359.)

Of course, when the court’s attention was directed to this omission in the pleading, it might have authorized the omission to be supplied by amendment, but no order or motion was made to that effect, and the objection ought to have •been sustained. In actions under the stock law of 1874, a reasonable attorney’s fee for the prosecution of the suit is recoverable in favor of the plaintiff; and therefore, there is less reason for favoring defective pleadings in these actions than in the ordinary cases commenced injustices’ courts. In this case, thirty-five dollars was allowed as attorney’s fee. Certainly where the statute contemplates the employment of an attorney before the justice, and provides for compensation to be recovered from the opposing party, the.attorney engaged should at least be careful to see that the complaint states facts essential to a cause of action; and if it fails so to do, on the first objection to any substantial- omission, it should at once be corrected by amendment.

The judgment will be reversed, and the case remanded.

All the Justices concurring.