Wiseman v. St. Louis, Arkansas & Texas Railway Co.

Thompson, J., delivered the opinion of the court. This action was commenced before a justice of the peace under section 809, Revised Statutes, to recover double damages for killing the plaintiff ’ s cow on the defendant’s railway in an open woodland where its track was not fenced. The plaintiff had a verdict and judgment, from which the defendant appeals. I. The judgment must be reversed, because it was neither averred nor proved that Tywappity township, in which the action was brought, adjoined Ohio township, in which the cow was alleged and proved to have been killed. Such a fact is a jurisdictional fact, which must be not only averred in the statement, but also shown by the evidence. Backenstoe v. Railroad, 86 Mo. 492; Ellis v. Railroad, 83 Mo. 372; Mitchell v. Railroad, 82 Mo. 106; Wright v. Railroad, 25 Mo. App. 236; Palmer v. Railroad, 21 Mo. App. 437; Kinion v. Railroad, post, p. 573. It was not necessary, as counsel for the plaintiff argue, that this question should have been raised by a demurrer to the evidence. It was raised by the motion for new trial, and by motion in arrest of judgment; but, being a jurisdictional question, it could be raised at any time. We shall, however, remand the [518] cause, as this defect may possibly be cured by amendment and evidence on another trial. Mitchell v. Railroad, supra. II. As the case may be tried again, we shall notice another assignment of error. The plaintiff was not present at the trial in the circuit court, and his whereabouts were not accounted for. One of his witnesses stated, on cross-examination, that he heard the plaintiff testify in the cause before the justice of the peace. The following questions were then put to the witness, but were excluded on the objection of the plaintiff’s counsel, the defendant excepting: £ £ Did not plaintiff then swear that his cow was twelve years of age?” ££Did not the plaintiff then state that this cow was a dry cow, and not giving milk?” This evidence was plainly competent as an admission of the plaintiff against his interest (Schlicker v. Gordon, 19 Mo. App. 479; Sparr v. Wellman, 11 Mo. 230); and, as there was evidence for the plaintiff tending to show that the cow was a milk cow seven or eight years old, it was material. All the judges concurring, the judgment is reversed and the cause remanded.