
    The Atchison, Topeka & Santa Fe R. R. Co. v. Lujan.
    1. Section 2 (General Laws 1877, p. 850) fixes the liability of railroad companies for stock killed by their engines and cars, and section 3 was designed to regulate the proceedings under the act. The failure of the owner of stock killed to have the value appraised before bringing suit, is proper subject matter of plea in abatement.
    2. Such defense being of a dilatory character, an omission to interpose the same at the earliest opportunity must be regarded as a waiver.
    
      Appeal from County Court of Las Animas County.
    The case is stated in the opinion.
    Messrs. Thatcher and Cast, for appellant.
   Beck, J.

The appellee Lujan recovered a judgment against the appellant before a justice of the peace of Las Animas county for the value of a horse alleged to have been killed by the cars of the defendant.

The railroad company appealed from this judgment to the county court of said county, where, upon trial de novo, plaintiff also recovered judgment.

The railroad company brings the cause here for review, assigning for error that the finding and judgment of the county court are contrary to the law and the evidence.

Two points are relied upon for a reversal of the judgment:

First. That the plaintiff was not entitled to recover under the statute which provides for the payment of stock killed by railroads (General Laws 1877, p. 850), because he did not comply with its provisions before commencing suit.

Second. That the judgment cannot be sustained on the theory of a common law liability, because the evidence does not disclose any proof of negligence on the part of the defendant.

Section 3 of the act referred to requires the owner of the animal killed to make out and deliver to an agent or officer of the railroad company, within six months after the killing, an affidavit of ownership, etc.; it further provides for an appraisement of the value of the animal killed, where, as in the present case, no price or sum is fixed in the act.

The plaintiff made the required affidavit of ownership, hut the record does not show that prior to bringing suit he took the initiatory steps prescribed for an appraisement of the value of his horse.

Our view of the case is, that section 2 of the act fixes the liabilities of railroad companies for stock killed by their engines and cars; and that section 3 was designed to regulate the procedure under the act, so as to afford these corporations an opportunity in all cases to pay the fair value of animals killed by their engines and cars, without suit. The failure of the plaintiff, therefore, tó have the value of the horse appraised, before bringing his suit, might have been pleaded in abatement of the action.

It does not appear, however, that the objection was made, either before the justice or in the county court. The trial was upon the merits in both courts, the defense relied upon being that the horse was not killed by the cars of the defendant.

The omission, therefore, to set up or plead this matter in abatement of the suit must be regarded as a waiver of the objection. Such defense being of a dilatory character, must be interposed at the earliest opportunity.

The testimony as to the manner in which the horse was killed, although somewhat conflicting, is sufficient to sustain the finding and judgment of the county court.

The judgment will therefore be affirmed.

Affirmed.  