Indianapolis & Cincinnati Railroad v. Wilsey

Worden, J. Suit by the appellee against the railroad company, to recover for a cow killed by the ears of the company upon the road where it was not fenced. The suit was brought before a justice of the peace of Marion county, and appealed to the Circuit Court. In the latter Court the defendant moved to dismiss the cause, because the justice had not copied the plaintiff’s cause of action on the docket, as directed by the 18th section of the justices’ act. 2 R. S. 1852. p. 453. This motion was overruled. In this we think there . was no error. Trial, finding and judgment for the plaintiff, a new trial-being refused. We think it is hardly sufficiently averred that the cow was killed in Marion county, and the evidence wholly fails to show that the injury complained of was committed in that county. This defect in the proof is fatal to the recovery. The Indianapolis, &c., Railroad Co. v. Renner, 17 Ind. 135. Per Curiam. The judgment below is reversed, with costs.