Welton v. Pacific Railroad , 34 Mo. 358 ( 1864 )

Dryden, Judge,

delivered the opinion of the court.

There is nothing in the record showing that the Circuit Court unsoundly exercised its discretion in permitting the sheriff to amend his return to the summons; nor did it err in refusing to set aside tlie interlocutory judgment: there was not the semblance of an excuse shown by the plaintiff in error for its failure to appear and answer within the time prescribed by law for pleading.

If these were the only objections to the proceeding of the court, we would feel no hesitation in affirming the judgment. But it is urged by the plaintiff in error that the petition in the case is insufficient to support the judgment; and after a careful consideration of the question we have arrived at the conclusion, the objection is well taken. The petition contains three counts substantially alike, based on alleged violations of the provisions of an act of the General Assembly entitled, “ An act concerning the transportation of slaves by railroad companies,” approved February 27, 1855. (Session Acts 1855, p. 169.)

The act provides “ That the several railroad companies in this State whose officers shall transport any slave from one point or place in this State to any other point or place in the same, in any car or other conveyance of said companies, without the consent or permission of the person to whom such slave does of right belong, or who has authority to grant such consent or permission, shall forfeit and pay double the value of such slave to his owner, to be recovered by action of debt, without prejudice tc the right of such owner to his action at common law.”

The act, it will be observed, does not embrace all railroad companies, but alone “railroad companies in this State;” and in order to show a liability to the penalty, it is essential it should appear on the face of the petition that the party sued falls within the class of companies embraced within the act. This, the petition in this case fails to show; it does not appear from any averment in the petition that the plaintiff in error was ever incorporated, much less that it was an incorporated company in this State.

The respondent has cited numerous authorities to prove that where the plaintiff sues in a name appropriate to a corporate body, it is not necessary to aver in the complaint that it is a corporation. The authorities only prove that a party using a name appropriate to a corporate body shall be presumed to be a corporation, and capable of suing, until denied by the adversary.

And if the principle established by these authorities should be held to apply to a defendant corporation, still the point is not met. The question is not a question of capacity to sue or be sued, or whether the plaintiff in error is a corporation; but it is, whether the plaintiff in error being presumed to be a corporation, and having capacity to be sued, is one of a class embraced within and exposed to the penalties of the 'law under consideration. The law will not presume it belongs to such class, but the fact must appear by averment.

The petition not showing the plaintiff in error was a railroad company in this State, failed to show any cause of action, and for this reason the judgment will be reversed and the cause remanded, with leave to the respondent to amend.

The other judges concur.