Silver v. Kansas City, St. Louis & Chicago Railway Co.

Ellison, J. — This cause was before the supreme court of this state on plaintiff’s appeal and is found reported in 78 Mo. 528. On a re-trial plaintiff amended his petition, omitting the two common law counts and materially changing the third count in the original petition. The third count in the original petition is the second count in the petition as amended. Objection was made to this amendment and defendant endeavored to have it stricken out, but the court overruled its motion to that effect. We are relieved of the necessity of passing on the .correctness of the court’s action in overruling this motion from the fact, that the defendant, instead of standing on his motion, answered over to the merits and thereby waived the point. Scovil v. Glasner, 79 Mo. 449. The motion to suppress the depositions was properly sustained. Under our statute a notary public can only transact his official business in the county for which he was appointed and in which he resides. Section 2123, Revised Statutes, authorizes depositions to be taken without this state by a notary public “within the government where the witness may be found.” We are informed by defendant’s counsel that in Illinois a notary public may execute the duties of his office in any part of the state, so long as his residence is in the county of his appointment. There was no evidence, however, of this at the trial. The statute of Illinois was not introduced. There is no presumption to be entertained as to what her statutes are. In those states formerly subject to the common law of England the presumption here would be that the common law is in force there. But as Illinois was a part of the Louisana purchase and was never [10] subject to the common law of England, such presumption would not obtain in matters where the common law was applicable. There being no proof of the Illinois statute, and there being no presumption as to what her law is, we hold our own statute as to the powers of the notary applicable. Crone v. Dawson (19 Mo. App. 214), and” White v. Chaney (20 Mo. App. 389). Our statute saying the deposition may be taken by any notary “ within the government where the witness may be found,” I think, means any notary within the government, who is qualified and entitled to act, at the place where the witness may be found. In this state, as before said, he would only be qualified to act in the county of his appointment. In regard to the remaining objections by defendant, I am unable to conclude they should be sustained, especially under the opinion in this cause in 78 Mo. supra. The instructions given for defendant go a greater length for it, than can well be justified under the rulings of the supreme court, when the cause was before that tribunal. So soon as the defendant began to operate its engines and cars the necessity of protection from such cars and the obligation to fence began. 78 Mo. 533. So soon as the defendant removed plaintiff’s fence for the purpose of constructing its road the necessity for protection to plaintiff’s fields arose and its obligations t© fence likewise arose. 78 Mo. 535. Notwithstanding this is said by the supreme court, the reason and justice of which is apparent at first blush, yet the' court, further on, does seem to say that a railway is to have a reasonable time, after beginning the operation of its cars and a reasonable time after tearing away an enclosure and exposing the owner’s crops, in which to build the fences and cattle guards required. I take it that it .is here meant that if damage should accrue to the owner of fields by reason of a railway tearing down his fences,, before the expiration of a reasonable time for the railway to put in cattle guards and enclose its track, the remedy would be an ordinary action for the loss, and not [11] under section 809. For it could not be for a moment supposed that a railway could throw open one’s fields to the commons and not be held for the damage in some-form of action. The question whether defendant had a reasonable time in which to build the fences or put in the cattle guards before the injury inflicted on plaintiff’s property, was' submitted to the jury. Defendant contends there can be no recovery under the first count for injury to plaintiff ’ s sheep by collision with a train belonging to another corporation and operated by and for. the benefit ©f the contractors in the construction of the road. If this action was for an injury resulting from the-negligence of those operating the train, as if the stock had been killed at a public crossing, or the like, there-would be some force in this objection. But the action is based on the want of a fence, the injury being occasioned by the failure to fence, without reference to negligence. This was a statutory duty imposed on defendant which it could not shift. There is no error in the record justifying a reversal and the judgment is, therefore, with the concurrence of the other judges, affirmed.