
    The Louisville, New Albany and Chicago R. W. Co. v. Stover.
    
      Baekroad.—Killing Stock.—Summons.—Service of.—Appearance.— Waiver.— In an action against a railroad company, to recover for live-stock killed by the cars of the defendant, a failure to serve the summons on the defendant, by a delivery of a copy thereof to the conductor, as required by statute, is waived by the appearance of the defendant to the action.
    From the Montgomery Circuit Court.
    
      S. G. Willson and L. B. Willson, for appellant.
    
      Thompson &; Thompson, for appellee.
   Perkins, J.

Suit hy appellee, against appellant, before a justice of the peace, to recover the value of a cow killed by appellant’s cars, at a point where the road was not securely fenced.

Process was served upon a conductor of the road, but a copy of the process is not in the record.

On the 29th of November, 1875, the parties appeared before the justice, and, by agreement, the cause was continued to the 20th of December then next ensuing. At the time to which the cause was continued, “ the parties appeared in person and by attorneys,” says the transcript of the justice, and a trial of the cause was had, resulting in a judgment for the plaintiff, in the sum of fifty dollars, and costs.

The defendant appealed to .the circuit court. In that court, the parties appeared by their attorneys, waived a jury, and submitted the' cause for trial to the court, who found for the plaintiff in the sum of fifty dollars, and costs.

A motion for a new trial, because the verdict was not sustained by the evidence, was overruled, and exception reserved. An appeal was prayed to the Supreme Court, and sixty days were given in which to file a bill of exceptions.

Within the sixty days, the following bill was filed:

“ Be it remembered, that, after the trial of the above entitled action and the finding of the court in favor of the plaintiff, the defendant, by her attorneys, 'filed her motion and reasons in writing, to wit:

'Stover v. The L., N. A. and C. R. W.
££ £ Comes now said defendant, and moves the court to set aside its finding herein, and for a new trial of this cause; for the reason that the finding of the court is contrary to law, and not sustained by the evidence.’
“ Which motion the court overruled, and to the ruling of the court upon said motion the defendant then and there, at the proper time, excepted, and now prays that this, his bill of exceptions, he signed, etc., which is done.
“Albert D. Thomas.”

Appeal to this court.

Errors assigned: That the court erred in rendering judgment as it did, and in overruling the motion for a new trial.

The evidence is not in the record.

The following is the point made in appellant’s brief:

“ The transcript of the justice shows no sufficient service upon the defendant, under the statute, to confer jurisdiction upon the justice.”

There appears no copy of the summons in the transcript. .

The appearance of the party to the cause in the two courts, and submitting it for trial therein, without objection, gave the courts full jurisdiction of the party, and superseded the necessity of a copy of the summons in the record to show it.

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