Vickery v. Omaha, Kansas City & Eastern Railway Co.
Missouri Court of Appeals
Appeal from Marion Circuit Court. — Son. David S. Dby, Judge. (1) The first count of the petition alleges the cause of the frightening of the horses, the escape of steam. The second count alleges as the cause of the injury the failure to blow the whistle or ring the bell. Proof of one would disprove the other. These counts are, therefore, fatally inconsistent and it was error to enter a general judgment as it is impossible to tell which count the court found to be true.
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Appeal from Marion Circuit Court. — Son. David S. Dby, Judge. (1) The first count of the petition alleges the cause of the frightening of the horses, the escape of steam. The second count alleges as the cause of the injury the failure to blow the whistle or ring the bell. Proof of one would disprove the other. These counts are, therefore, fatally inconsistent and it was error to enter a general judgment as it is impossible to tell which count the court found to be true. Rutledge v. Railroad, 110 Mo. 312; Roberts v. Railroad, 43 Mo. App. 287; Byington v. Railroad, 147 Mo. 673. (2) The petition…
1Opinion of the CourtBland, P. J.
Defendant is a railroad corporation. The judgment was by default. After an unsuccessful motion to set aside the default judgment, defendant appealed.
One of the contentions of appellant is, that there was no service of process of summons on defendant and that the court acquired no jurisdiction over the person of the defendant.
The sheriff’s return on the summons is as follows:
“I executed this writ in the county of Marion and State of Missouri on the twenty-seventh day of April, 1900, as di*5rected by ¥m. R. Anderson, tbe attorney for tbe within named plaintiffs, by delivering to, and leaving…
2Cases cited6 opinions
- Cloud v. Inhabitants of the Town of Pierce CitySupreme Court of Missouri · 1885
- Madison County Bank v. Suman's AdministratorSupreme Court of Missouri · 1883
- Stewart v. StringerSupreme Court of Missouri · 1867
- Laney v. GarbeeSupreme Court of Missouri · 1891
- Blanton v. JamisonSupreme Court of Missouri · 1831
1 more not listed; retrieve them via the Exa API.
3Cited by6 opinions
- Saller v. Friedman Bros. Shoe Co.Missouri Court of Appeals · 1907
- Nathan v. Planters Cotton Oil Co.Missouri Court of Appeals · 1915
- Grisham v. National Life InsuranceMissouri Court of Appeals · 1908
- Cox v. American InsuranceMissouri Court of Appeals · 1909
- Landers v. Quincy, Omaha & Kansas City RailroadMissouri Court of Appeals · 1911
1 more not listed; retrieve them via the Exa API.