Nickerson v. Eddy

Smith, P. J. — This was an action begun before a. justice of the peace to recover damages for the alleged killing of plaintiff’s steer. On an appeal to the circuit court the plaintiff had' judgment, and defendants have brought the case here by appeal. The demurrer interposed to the evidence by the defendants at the conclusion of plaintiff’s case should have been sustained. The statute expressly declares, section 6126, that any action-against a railroad company for killing or injuring-horses, mules, cattle or other animals shall be brought before a justice of the peace of the township in which the injury happened, or in any adjoining township. It has been repeatedly decided by the appellate courts of' this state that it is a jurisdictional fact, which must affirmatively appear of record that the injury did happen either in the township in which the justice sits-before whom the suit is brought, or in an adjoining township. The bill of exceptions must show, as it does not in this case, that the proof was made of one or the-other of these jurisdictional facts; otherwise there can be no recovery. Manuel v. Railroad, 19 Mo. App. 631; Roberts v. Railroad, 19 Mo. App. 649; Palmer v. Railroad, 21 Mo. App. 437; Backenstoe v. Railroad, 23 Mo. App. 148; Harris v. Railroad, 23 Mo. App. 328; 571 Wiseman v. Railroad, 30 Mo. App. 516; Kinion v. Railroad, 30 Mo. App. 573; Jewett v. Railroad, 38 Mo. App. 48; Mitchell v. Railroad, 82 Mo. 106; Backenstoe v. Railroad, 86 Mo. 492; King v. Railroad, 90 Mo. 520. Although, no such point is called to our attention in the brief of the defendants, yet it may not he improper for ns to state that the plaintiff’s statement does not aver, as it should, either of the jurisdictional facts just referred to. The judgment will he reversed and the cause remanded.