President of the Ohio & Mississippi Railroad v. Quier

16 Ind. 440, 1861 Ind. LEXIS 237

• Court: Indiana Supreme Court
• Decided: June 15, 1861
• Status: Published

Opinion

Worden, J.

^ Quter sued, the company before a justice of the peace, for killing stock. Process was served on the defendant ten days before the return day, by “ certified copy, on John Holland, conductor of freight train.” The defendant failed to appear before the justice, and, after hearing testimony, the justice rendered judgment for the plaintiff. The defendant appealed to the Common Pleas, and there moved to dismiss the action, for these reasons:

“ 1. The process of summons was not served thirty days prior to the day of trial before the justice, but only ten 'days; the principal office of said company not being within the State of Indiana, but in the State of Ohio.

“ 2. The summons does not show process served at all.

ct 3. Process was not served on the conductor of any train passing through Jennings county.”

The motion was overruled, and the defendant excepted. Trial by the Court; finding and judgment for the plaintiff

The first ground of the motion to dismiss was fully considered in the case of the Michigan Southern and Northern Indiana Railroad Company v. Shannon, 13 Ind. 171. The point was there decided against .the appellant, and to that decision we adhere.

Theo. Gazlay and Z. Bingham, for the appellant. II. G. Neweomb and J. Tarlcington, for the appellee.

The other grounds of the motion, we regard as insufficient. Process appears to have been duly served on the conductor of a freight train. It is objected, that it does not appear that he was the conductor of a train passing through Jennings county. It is not to be supposed, without a showing to that effect, that the officer went out of his jurisdiction to serve process, or that he served it upon the conductor of a train not passing through the county.

Per Ouriam.

The judgment is affirmed, with 5 per cent, damages and costs.