Jaco v. Southern Missouri & Arkansas Railway Co.

BARCLAY, J. This action was begun before a justice of the peace in Black River township, Wayne.county, to recover damages in the sum of $56.60 for the killing of a cow charged as a result of defendant’s omission to maintain lawful fences along its railroad. The statement filed before the justice should be printed along with the official report of this opinion. It gives a full outline of plaintiff’s claim. Plaintiff had judgment before the justice. On appeal to the circuit court a like result ensued on a trial anew before Judge Deartng and a jury. The verdict of the jury was for the plaintiff and his damages assessed at $28.30. The court ordered the damages doubled (under sec. 1105, R. S. 1899) and entered judgment for plaintiff in the sum of $56.60 in August, 1901. Defendhnt appealed to this court promptly. No question of error is raised that the damages are ex [570] cessive; nor as to the correctness of the court’s order doubling the damages assessed by the jury. 1. The case is here on a short record, containing a copy of the judgment, and of the proceedings down to the appeal and order extending time for bill of exceptions beyond the adjournment of the term. The printed abstract filed in this court by appellant contains a brief account of the proceedings before the justice with a copy of the cause of action filed at the outset of the litigation. It then contains a copy of the bill of exceptions. But there is nothing even by way of narration to show when the bill was filed. There is a recital in the document itself which indicates that the bill was signed after the term at which the appeal was granted. In this condition of the abstract we can not review the matters contained in the bill of exceptions without disregarding imperativo and positive rulings of the Supreme Court on the question of practice involved. It has been held that at least some minute by the circuit clerk of the filing of the bill of exceptions must appear in the abstract to warrant an appellate court in considering the bill as part of the record for review. State v. Rolley, 135 Mo. 677; Ricketts v. Hart, 150 Mo. 64; Clements v. Turner, 162 Mo. 466; Finlay v. Gill, 80 Mo. App. (K. C.) 458. We are not permitted under these rulings to examine into the facts disclosed by the bill of exceptions. 2. All that there is of the record proper to review is the statement of plaintiff’s cause of action before the justice of the peace and the judgment and later orders aforesaid. The statement shows that on its allegations the justice had jurisdiction of the subject-matter of the action, by which is meant that he had the lawful authority to hear and determine cases of the general class to which the action in question belongs. Griffin v. Van Meter, 53 Mo. 430; Hagerman v. Sutton, 91 [571] Mo. 531; Hope v. Blair, 105 Mo. 93; Railway v. Lowder, 138 Mo. 533; Winningham v. Trueblood, 149 Mo. 580. The charges in the plaintiff’s statement before the justice presented a case of the general class committed by our laws to the j udicial authority of the justice- who took cognizance of this action at its inception. R. S. 1899, secs. 3835, 3839. The justice had jurisdiction of the subject-matter of the cause, and the recitals in the last judgment indicate that defendant appeared generally -to the action. So the circuit court was fully invested with power to enter the judgment pronounced. 3. There is no error in the record subject to review, and in circumstances like these it is proper to affirm the judgment. Long v. Long, 96 Mo. 180; Jayne v. Wine, 98 Mo. 404; State v. Harris, 121 Mo. 445; Snoddy v. Jasper Co., 146 Mo. 112; Bondurant v. Ins. Co., 73 Mo. App. (St. L.) 477; Nichols v. Engler, 78 Mo. App. (K. C.) 501; Upton v. Castleman, — Mo. App. (K. C.) — (67 S. W. Rep. 707). 1. As the appeal appears to have been taken in good faith, there seems to be no occasion to award any damages in favor of plaintiff on the theory that defendant’s appeal was frivolous or vexatious within the meaning of section 867 (R. S. 1899) despite the narrow range of review permitted by the record which has been submitted. The judgment is affirmed. Bland, P. J., and Goode, J., concur.