McNear v. Wabash Railway Co.
Missouri Court of Appeals
Appeal from the Boone Circuit Court. — Hon. W. A. Ma.rtin, Judge. (1) In the absence of any proof connecting defendant with the Wabash Western Railway Company, the trial court could not assume that they were the same corporations, or determine as to what relation, if any, existed between them. Southgate v. Railroad, 61 Mo. 89. (2) The constable was not authorized by law to serve the notice, and, therefore, his return was not even prima facie evidence of the fact of service.
Read the full summary
Appeal from the Boone Circuit Court. — Hon. W. A. Ma.rtin, Judge. (1) In the absence of any proof connecting defendant with the Wabash Western Railway Company, the trial court could not assume that they were the same corporations, or determine as to what relation, if any, existed between them. Southgate v. Railroad, 61 Mo. 89. (2) The constable was not authorized by law to serve the notice, and, therefore, his return was not even prima facie evidence of the fact of service. George v. Middaugh, 62 Mo. 549 ; Blodgett v. Perry, 97 Mo. 263; Acts, 1885, p. 88; R. S. 1879, secs. 473, 474, 552, 748,…
1Opinion of the CourtEllison, J.
I. This action is based on section 809, Revised Statutes, 1879, as amended by Acts, 1885, page 88, now section 2611, Revised Statutes, 1889. It is *16to recover the value of a fence built by the land-owner along.the side of the railway, as well as for an attorney’s fee in the cause. Recovery was had below, and the defendant appeals, complaining here: First. No notice to build was served on defendant, “as required by the statute under which the suit was instituted.” Second. There was no proof that the road had been in operation three months. Third. It did not appear by the proof that the fence…
2Cases cited1 opinion
- Wabash, St. Louis & Pacific Railway Co. v. ZeiglerIllinois Supreme Court · 1883
3Cited by1 opinion
- Sharp v. Q., O. & K. C. Ry. Co.Missouri Court of Appeals · 1909