Bomer v. St. Louis Southwestern Railroad

COX, J.

Action for double damages for killing a steer which had come upon the track at a place where the road was not fenced; verdict for plaintiff for sixty dollars, which was doubled by the court, and judgment entered for one hundred and twenty dollars, and defendants have appealed. The appeal, in the first instance, was granted to the Supreme Court by which it was remanded to the St. Louis Court of Appeals for want of jurisdiction in the Supreme Court to determine the questions involved. The ease was afterward transferred to this court from the St. Louis Court of Appeals under the statute of 1909 authorizing such transfer. The parties appeared in this court and waived all questions as to the'jurisdiction of this court and its right to determine this appeal and have submitted the case for our determination.

The questions involved in this appeal are, first: that the trial court erred in not sustaining a demurrer to plaintiff’s testimony. In support of this contention it is urged that the evidence shows that at the- point where the. steer was killed the company was not required to fence its road. The place was near a small station at which the railroad had no depot, hut it received and discharged passengers and freight. It was contended that it was necessary to leave the road unfenced at the point where the steer was killed in order that the railroads using the track might properly conduct their business at this station. "We have examined the testimony carefully in this case and the instructions given, and find that the issue as to whether or not it was the duty of defendant to have the track fenced at the point where the steer was killed was submitted to the jury upon proper instructions and the evidence is ample to sustain the verdict, and-that being true the verdict is binding upon us.

The other contention is that the court of common pleas at Cape Girardeau did not have jurisdiction to try this case. It appears that the place where the steer was killed was in Scott county, and the plaintiff lived in Scott county. It is contended by appellants that the court of common pleas of Cape Girardeau county had no jurisdiction of a case of this kind originating in Scott county, and it is contended that the statutes which give jurisdiction to justices of the peace in suits for damages for the killing of stock by railroads gives them original jurisdiction, and that the statute, giving the circuit courts jurisdiction, makes their jurisdiction in a similar class of cases concurrent with that of the justice of the peace, and while conceding that the jurisdiction of the Cape Girardeau Court of Common Pleas is, within its territory, the same as that of a circuit court, yet it is contended that a circuit court of one county cannot have concurrent jurisdiction with a justice of the peace in another county, and that, therefore, neither the circuit court nor the court of common pleas of Cape Girardeau county could have jurisdiction to try an action of this character which originated in Scott county.

It will be unnecessary for us to review and interpret tbe various provisions of tbe statutes of tbis state in relation to tbis matter for tbe reason that defendants appeared, filed answers in tbis cause and went to trial in tbe court of common pleas without raising any question as to tbe jurisdiction of that court, and it appearing by tbe statute that tbe court of common pleas bad jurisdiction of this class of actions, tbe fact that defendants appeared, answered and went to trial without questioning tbe court’s jurisdiction in tbe cause, precluded them from afterwards asserting that tbe court did not have jurisdiction. [Rodney v. Gibbs, 184 Mo. 1, 82 S. W. 187; Padgett v. Smith, 206 Mo. 303-313, 103 S. W. 943; Julian v. Kansas City Star, 209 Mo. 35, 107 S. W. 496.] Tbe judgment will be affirmed.

All concur.