Kansas City, Pittsburg & Gulf Railway Co. v. Lowther

Hughes, J., (after stating the facts.) Section 6238 of Sandels & Hill’s Digest is as follows: “It shall be the duty of all railroad companies organized under the laws of this state, which have constructed, or may hereafter construct, a railroad which may pass through or upon any enclosed lands of another, whether such lands were enclosed at the time of the construction of such railroad, or were enclosed thereafter, upon receiving ten days’ notice in writing from the owner of said lands, to construct suitable and safe stock guards on either side of said enclosure where said railroads enter said enclosure and to keep the same in good repair.” Section 6239 provides for a penalty of not less than twenty-five nor more than two hundred dollars for failure to comply with the 'statute, to be recovered in a civil action by any person aggrieved thereby. There is no evidence of the service of the notice, save the constable’s return thei-eon not sworn to. There is no provision in this statute as to who may serve the notice provided for, nor as to how the service shall be proved. We find no statute making the return of the constable, who served the notice, proof of the fact of service; and we think the fact of service should be proved like any other fact, the proof of which is not provided for by statute. 16 Am. & Eng. Enc. of Law, 827 and cases cited in note 4. Section 5890, Sandels & Hill’s Digest, provides that “notices mentioned in the code shall be in writing, and may be served by a sheriff, constable, coroner or marshal of a town or city, whose return shall be proof of the service.” But the notice provided for in section 6238, Sand. & H. Dig., is not mentioned in the code, because section 6238 was passed long after the adoption of the code. Besides, the code provision quoted relates to notices in proceedings or suits in courts, which the notice provided for in section 6238 cannot be said to be. Reversed, and remanded for a new trial.