Snow v. McCracken

Grant, J. Defendant’s dog killed plaintiff’s chickens. Plaintiff sued in justice’s court, and filed a declamation, in which it is alleged that the defendant was the “owner or possessor” of the dog, and that he “well knew that his said dog was mischievous, and disposed to and in the habit of killing fowls.” Plaintiff recovered a judgment of $22 in the justice’s court. Defendant appealed to the circuit court, where a jury rendered a verdict against him, the amount of which is not shown by the record. No objection was made to the declamation in the justice’s court, the defendant pleading the general issue. Upon the trial in the circuit court defendant’s counsel objected to the introduction of any evidence, upon the ground that the declamation did not .state a case, and at the close of the testimony requested the court to direct a verdict for the defendant. The record discloses no reason other than that above given for the .objection or for the request. Three objections appear now to be made in his brief: That the declaration does not allege (1) that the defendant was the owner or keeper of the dog at the time of the injury, or (2) that he knew his mischievous habits, or (3) that he negligently allowed him to run at large. The first and second objections are answered by the fact that the declaration does allege that he was the owner o.r possessor, which is the same a.s keeper, and that he did know of his vicious habits. The third objection is •answered by stating that it is unnecessary to allege that lie negligently allowed the dog to run at large. The issue clearly presented by the declaration was that the defendant owned or kept a dog, which killed plaintiff’s chickens, and that he knew tlie character of the, dog. If he desired a more specific declaration, he should have demurred. The case is frivolous in both the amount involved and the questions raised. The appeal is therefore vexatious, and plaintiff will he allowed an additional attorney fee of $30 for a vexatious appeal. The other Justices concurred.