Mobile & Ohio Railroad v. Dale

Chalmers, J., delivered the opinion of the court. The circuit court was not deprived of jurisdiction even though it was shown that the defendant had not received a copy of the summons in the justice’s court and had not waived a copy. The judgment by default in the justice’s court was rendered on a return of process proper and correct on its face, and therefore, though in fact irregularly rendered, was not a nullity. The defendant, by its appeal and appearance in the circuit court, gave that court jurisdiction, and the case being there triable de novo, the failure to give a copy of the summons in the lower court was immaterial, because the judgment in the justice’s, court was based upon personal though defective service. It not being a nullity, the circuit court had j urisdiction of the subject-matter, and the prosecution of the appeal gave jurisdiction of the person of the appellees and the right to' try the case de novo. The first affidavit for a continuance was manifestly and confessedly insufficient, and-the court did not, as contended by counsel for the appellant, refuse time to amend it. It is shown by the bill of exceptions that counsel for the defendant did not ask for time to prepare an amended affidavit. The charge asked by the defendant was properly refused. It asked the court to instruct the jury that if they believed that a whistle was blown by the locomotive of the defendant, this fact devolved upon the plaintiff the burden of showing negligence on the part of the defendant. This was manifestly improper. The statute imposes upon the railroad company, the fact of the injury by their cars' having been established, the burden of showing the exercise of all proper skill and care upon its part. It does not meet this burden by showing the exercise of due care in one particular only, to wit: in the blowing of a whistle. Affirmed'.