Mier v. St. Louis, Iron Mountain & Southern Railroad

56 Mo. App. 655, 1894 Mo. App. LEXIS 129

• Court: Missouri Court of Appeals
• Decided: March 5, 1894
• Status: Published

Opinion

Biggs, J.

— Under the pleadings and evidence the judgment in this case can not be upheld. The action is for double damages under section 2611, Revised Statutes of 1889, for killing a horse, the property of the plaintiff. The petition alleged, and the proof showed, that the animal was killed in Sylvania township in Scott county, whereas the suit was brought in Moreland township in said county. There was no allegation in the complaint, or proof on the trial, that the two townships adjoin.

It has been repeatedly held by this court and the supreme court that the fact, that the animal was killed in the township where the suit is brought, or in an adjoining township, must be averred and proved. It is a jurisdictional fact and is necessary to be averred in order to confer on the justice jurisdiction of the action. Wiseman v. Railroad, 30 Mo. App. 516; Kinion v. Railroad, 30 Mo. App. 573; Backenstoe v. Railroad, 86 Mo. 492; Ellis v. Railroad, 83 Mo. 372. Hence the court committed error in overruling defendant’s demurrer to the evidence. We will, however, remand the case, as the defect may possibly be cured by amendment and evidence on another trial. Mitchell v. Railroad, 82 Mo. 106.

The authorities relied on by the plaintiff have no application. The cases treat of jurisdiction of the person. In a transitory action a defendant may voluntarily submit to the jurisdiction of any court having cognizance of such a case, but the jurisdiction of the subject-matter of an action must exist by law, and it can not be conferred by the- consent or conduct of the litigants.

The judgment will be reversed, and the cause remanded.

All the judges concur.