Harris v. St. Louis, Iron Mountain & Southern Railway Co.

23 Mo. App. 328, 1886 Mo. App. LEXIS 56

Opinion

I.

Hall, J.

It is morally certain, under the facts stated, that the motion for new trial, transmitted by the clerk of the circuit court in obedience to our order made upon him, was by mistake endorsed with an erroneous title, and was filed by the defendant in the circuit court in this case. We are convinced that such are the facts. Such being the case, we are of the opinion, and so hold, that said motion for new trial should be treated as having been filed by the proper title of this case in the circuit court

II.

It was necessary for the plaintiff to prove that the horse was killed in the township of the justice of'the peace. From the facts proved in this case as to the place at which the horse was killed the jury were not at liberty to infer that the horse was killed in such township. Backenstoe v. Railroad Co., 86 Mo. 492. For this reason the judgment must be reversed. But, inasmuch as the failure to prove such fact was doubtless a mere oversight, and such proof can be supplied on a new trial, the cause will be remanded for that purpose.

It is so ordered.

Ellison, J., concurs ; Philips, P. J., absent,