Plaintiff instituted his action against defendant before a justice of the peace wherein he complained that defendant’s engines and cars had struck and killed his cow. He recovered before the justice, as well as in the circuit court, whence the case was taken on appeal from the justice.
Plaintiff’s contention here is that the circuit court had not, and this court has not, jurisdiction of the cause, and that his judgment before the justice stands against defendant unaffected by any proceeding since. His point is based on the fact that defendant’s affidavit for an appeal from the justice failed to state whether such appeal was from the merits, or from an order or judgment taxing costs, as required by section 6330, Eevised Statutes, 1889. That by omitting this requirement of the statute, no jurisdiction of the subject-matter was conferred upon the circuit court. The question *604was not raised in the circuit court and has been urged here for the first time in the history of the cause. Plaintiff’s position is supported by the case of Whitehead v. Cole, 49 Mo. App. 428. That decision is attacked by defendant, and we are now of the opinion that we went too far m the Whitehead case in declaring that the' omission of the statement as to the appeal being from the merits or costs was fatal to the circuit court’s jurisdiction of the cause. An affidavit omitting to state whether the appeal is from the merits or merely from an order taxing costs is a defective affidavit, but is, notwithstanding such omission, an affidavit; and as such, it may be amended. Revised Statutes, 1889, section 6340. If it may be amended it must be a thing of substance on which an amendment can operate, and will necessarily have an operative effect in taking the cause from the inferior court and placing it in the superior court. A justice of the peace might very properly refuse to allow an 'appeal unless the necessary statutory affidavit was • filed; indeed, under sections 6328 and 6330, Revised Statutes, he ought not to allow it. But if he, notwithstanding the affidavit is defective, or if no affidavit at all is made, nevertheless does allow the appeal and sends the transcript and papers to the circuit court as required by statute, section 6337, that court obtains jurisdiction of the cause. See State v. Cook, 33 Mo. App. 57; City of DeSoto v. Merciel, 53 Mo. App. 61. This is the more clearly apparent from the terms of section 6339, wherein it is declared that: “Upon the return of the justice being filed in the clerk’s office, the court shall he possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or the service thereof, or on the trial, judgment or other proceedings of the justice or constable in relation to the cause.”
*605So, construing sectiqns 6328, 6330 and 6340* together it amounts to this, that under the former no appeal should be allowed until the statutory affidavit substantially complying with the statute is filed with the justice, but if the appeal should, nevertheless, be allowed, without complying with the former sections, it shall not, under the terms of the last section, be dismissed, if the appellant will make and file a proper affidavit in the circuit court before the appellee’s motion to dismiss is determined.
It necessarily follows from the foregoing considerations that the affidavit may be waived by the appellee. He may take action on account of the defect, if he so desires, and if the appellant fails or refuses to 'cure the defect, as permitted by the statute, he will be punished by the dismissal of his appeal. But if the appellee fails to exercise his right to demand a proper affidavit, it will not affect the jurisdiction of the circuit court over the subject-matter of the action.
II. The judgment that was rendered in the circuit court is then, the one upon which plaintiff must rely. A consideration of the record and arguments of counsel has satisfied us that that judgment should be affirmed. The evidence shows, or at least it can be so stated, in the light of the verdict of the jury, that the cow got. upon the track outside the corporate limits of the town of Lingo. There is evidence tending to show that she got upon the track through a defective fence, or, at a point outside the limits of the town where there was no fence, but where there should have been. The latter theory was submitted to the jury in an instruction. But defendant contends that the track could not be fenced at this point. That the fence and cattle guard were as. close to the head of the switch as could be consistent with the safety of the trainmen in switching and handling trains at the town of Lingo. This question was *606likewise submitted to the jury by such an instruction as was said to be proper in Pearson v. Railroad, 33 Mo. App. 543.
Defendant says that plaintiff’s statement of his cause of action fixes the point where the cow went upon the track at a place where the track passes through enclosed or cultivated fields; and that there is no evidence to sustain this allegation. The allegation made by plaintiff is broader than defendant states it. The allegation is that the animal went upon the track “at a point where said railroad passes through, along or adjoining enclosed or cultivated fields, or unenclosed lands” where defendant had failed to erect lawful fences, cattle guards, etc. This is the language of the .statute, section 2611, Revised Statutes, 1889. There was evidence tending to show that the cow went upon the track and was struck either inside the railroad fence, or, at a point outside of the fence which was beyond the limits of the town, and which need not have been left unfenced for the reasonable convenience of the railroad in handling its trains or transacting business with the public, at the adjoining station grounds.
The instructions refused for the defendant were properly refused. They, in effect, took from the jury the question as to the reasonable limit- of the switch ground.
The judgment will be affirmed.
All concur.