Toledo, Burlington & Logansport Railway Co. v. Tilton

Ray, C. J. This was an action in the Common Pleas Court of White county, for damages sustained hy the killing of cattle belonging to the appellee, hy the cars -of the appellant, along the line of the road, at a point where the same was not fenced. The complaint was in three paragraphs. The first was for the killing of a steer, on the 5th day of July, 1865, to the plaintiff’s damage in the sum of $25. The second was for the killing of a cow, on the 16th day of October, 1865, to the damage of the plaintiff in the sum of $50. The third paragraph alleged the killing of a heifer, on the 16th day of November, 1865, to the plaintiffs damage in the sum of $18. Trial and finding for the plaintiff. It is assigned in this court as error, that the Common Pleas .Court had no jurisdiction of the subject matter of the action. This point was not presented in the court below, [72] but was not, therefore, waived in this court. 2 G. & H., § 54, p. 81. We have heretofore held, that under the act of 1863, (Acts 1863, p. 25,) all animals killed at any one time constitute a separate and indivisible cause of action, and two of these causes of action cannot be united to give jurisdiction to the court, and that unless the value of the animal killed, or the injury done, at one time, exceeded $50, the jurisdiction of the subject of the action is confined to a justice of the peace. In the case before us, none of the paragraphs present a cause of action within the jurisdiction of the Common Pleas Court. T. C. Amiabal, for appellant. The judgment is reversed, with costs, and the cause remanded, with directions to dismiss the action.