Chicago & Rock Island Railroad v. Fell

Walker, J. The return of the justice of the peace to the writ of certiorari, in the court below, shows that a suit was instituted by appellee against appellant, for a trespass to personal property. It also appears from the return, that a summons was issued and returned: “ Executed the within summons by leaving a true copy of the same with Rollin G. Parks, agent of said company, this 22nd day of August, 1854, the president of said company not residing in my county.” And that on the return day evidence was heard and judgment was rendered against the company for $64.16 debt, and costs of suit. The common law writ of certiorari was used for the purpose of bringing the record of an inferior court or jurisdiction after judgment, before a superior court, to ascertain whether the inferior tribunal had acted without jurisdiction, or having jurisdiction, had proceeded illegally and contrary to the course of the common law. 1 Tidd’s Prac. 330. And if upon the return of the record, it appeared that the inferior tribunal had jurisdiction and no substantial irregularity was apparent on the face of the record, the writ was quashed and a procedendo was awarded; but if on the contrary, it was apparent from the record, that the inferior court had acted without jurisdiction, or had exceeded its jurisdiction, or had acted contrary to law in any material matter, the practice was to quash the judgment and proceeding of the inferior court. In the case under consideration the summons was regular on its face, for an amount clearly within the justice’s jurisdiction, and directed to the proper officer, returnable at a proper time, and formally accurate. But it is urged, that the justice had no jurisdiction of the subject matter of the suit. The statute regulating the powers and duties of justices of the peace, confers jurisdiction by express terms in cases of trespass to personal property, when the amount claimed does not exceed one hundred dollars. It is the well established doctrine, that an individual may commit a trespass by his command, through an agent or servant. And an incorporated company, may in the same manner, become liable for a trespass either to the person or property of a person. While trespass would not lie against a railroad company, for the negligence of its servants in exercising their legal rights, it is unquestionably true, that if the servant committed an injury upon the person or property of another, under the direction of the company, trespass might be maintained against the company for the injury. In such a case, the well recognized rules which apply to private individuals, are applicable to incorporations. And in this case, it was a question of evidence, whether the company was liable in this form of action, and as it is no part of the office of the writ of certiorari to return the evidence upon which the justice rendered the judgment, it was not competent for the court below, nor can this court, say that the injury complained of was not done under the express directions of the appellants. It was only necessary that the court should see, that the law conferred jurisdiction upon the justice to take cognizance of the offense specified, and when it appears the court could have had jurisdiction, the presumption is that the evidence made out a proper cause for its exercise. If judgments of justices of the peace may be reviewed by this proceeding, and such presumptions should not be indulged in their favor, as the evidence is never preserved, upon which judgments 'are rendered, they would all be liable to be quashed, and endless confusion would result from such a practice. It was also objected that the service of the summons, was not sufficient to give the justice jurisdiction of the appellant. This objection is not well taken. The legislature by act of February 8th, 1853, (Session Laws, p. 258,) provides, that when any suit shall be brought against any incorporated company, process shall be served upon the president of such company, if he reside in the county in which suit shall be brought, and if he shall be absent from the county, or shall not reside in the county, then the summons shall be served by the proper officer, by leaving a copy thereof with the clerk, cashier, secretary, engineer, conductor or any agent of such company, found in the county, at least five days before the trial, if before a justice of the peace, and at least ten days, where the suit is brought in the Circuit Court. The language of this act is broad and comprehensive, and certainly embraces all agents of the company. There is no limitation restricting, the service to the agent, whose duty requires. him to attend to the law business of the company. The service upon any of its agents, is sufficient, and if such agent fails to notify the company of the service, it is a neglect of duty on the part of the agent, for which the plaintiff should in nowise be held responsible. It is a misfortune, occasioned by the neglect of their own employee, for which they must be accountable. The other assignment of errors are not deemed to be well taken, and upon the whole record, no error is perceived for which the judgment of the court below, in quashing the writ of certiorari and awarding a procedendo, should be reversed, and the judgment is therefore affirmed. Judgment affirmed.