
    Schulte v. The St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    
    1. Railroads:. action for killing stock. A statement filed in a justice’s court in .an action against a railroad company for killing stock, to be sufficient under the 43rd section of the Railroad Law, must aver that the killing did not occur within the limits of an incorporated town.
    2. Practice in Supreme Court: amendments. In an action instituted before a justice of the peace, a judgment for the plaintiff being held to be erroneous because of a defect in the statement; Held, further, that as a proper amendment could be made in the circuit court, the case should be remanded to that court and not be dismissed.
    
      Appeal from Madison Circuit Court.—Hon. J. H. Nicholson, Judge.
    Reversed.
    
      T. J. Portis and Smith & Krauthoff for appellant
    
      E. D. Anthony and W. N. Nalle for respondent.
   Norton, J.

This was a suit instituted before a justice of the peace to recover damages under the 43rd section of Railroad Law, (Wag. Stat., p. 310.) for stock injured and killed by defendant’s locomotive. Upon trial in the circuit court of Madison county, where the case had been taken by appeal, plaintiff had judgment, from which defendant has appealed.

On the'trial defendant objected to the introduction of any evidence on the ground that the statement did not set forth a cause of action. This objection was overruled and this action assigned for error. In the case of Rowland v. St. Louis, Iron Mountain & Southern R’y Co., 73 Mo. 619, it was held that a statement, to be sufficient under the said 4$d section, must aver that the stock were not killed within the limits of an incorporated town. Testing the sufficiency of the statement in this case by the above rule, the judgment must be reversed because of the lack of such an averment in the statement.

Inasmuch as it was held in the same case that when it is evident- that the statement filed before the justice in an action against a railroad company, for killing stock, is intended to be brought under the 43rd section of the Railroad Law, any insufficiency in the statement may be amended after the case has reached the circuit court, the cause will also be remanded, when the statement may be amended so as to conform to the rule laid down in the above case, as well as in the case of Bates v. St. Louis, Iron Mountain Southern R’y Co., 74 Mo. 60. Judgment reversed and cause remanded,

in which all concur.  