Lindsay v. Kansas City, Fort Scott & Memphis Railroad

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff, upon appeal from a justice of the peace, recovered a judgment against the defendant for double damages, for the killing of the plaintiff’s sow, under the provisions of section 809 of the Revised Statutes.

It appears, from the evidence, that the sow was killed in Lynn township, but there is nothing in the record to show, that the justice of the peace, before whom the action was instituted, was either a justice of Lynn township, or of an adjoining township. The transcript of the justice is not in the record and the only recital therein is that he was a justice of the peace within and for Oregon county.

The action under this section is local, and the fact that it has been instituted before a justice of the peace of the township, or of an adjoining township to the one where the killing or maiming occurred, is a jurisdictional fact, which must appear by the record, and must be established by the evidence. This has been frequently and uniformly decided. Rohland v. Railroad, 89 Mo. 180, and cases cited. This omission is of itself fatal to the recovery, and necessitates a reversal of the judgment.

As this defect (under the ruling in Vaughn v. Railroad, 17 Mo. App. 4, loc. cit. 8) may be remedied in the circuit court if the facts warrant it, we deem proper to say in addition that the evidence, as preserved in the record, is insufficient to warrant a recovery in other respects. It appears, by the evidence, that the animal was killed by some violence upon, or near, the railroad track, but it does not appear, even by inference, that it was killed by defendant’s agents, engines, or cars. It does not appear that defendant was operating the road, or that any train of cars, or locomotive engine, had passed over it at any time, much less at the time of the accident. Failure to prove these facts, and thus establish, by at least inferential evidence, that the killing or maiming is one within the provisions of section 809, is equally fatal to plaintiff’s recovery. Gilbert v. Railroad, 23 Mo. App. 65.

Reversed and remanded.

All the judges concur.