This was a suit commenced before a justice of the peace, by Powell against the appellants, for damages for animals killed by the cars, &c., of the said appellants, where there was judgment for the plaintiff, and also in the Circuit Court on appeal.
The errors assigned are—
1. That the Circuit Court should have sustained the motion of the defendant to dismiss the cause.
The record shows that this motion was placed upon the ground that there was not a sufficient service; that a summons issued to any constable, &c., commanding him to summon the 11 New Albany and Salem Railroad Company, their agent, or attorney,” &e.; and the return is, “served as commanded by copy given to conductor Putnam, conductor on express train.”
Without stopping to inquire whether the motion made would reach a defect in the service, if such existed, we are of opinion the service is sufficiently shown, under the statute of 1853, p. 113. Same appellants v. Grooms, 9 Ind. R. 245.
It is insisted that the return should show that the person to whom the copy was delivered was, at that time, a conductor on a train passing through said county. Keeping in view the form of the command in the summons, we think the return does show that fact. It was served as commanded on a conductor—the conductor of an express train.
W. G. Cooper, for the appellants. D. D. Pratt, for the appellee.2. The Court should have sustained the motion of defendants to continue, &c.
There is no affidavit in the record in support of the motion. Without a proper affidavit, the ruling of the Court was right.
The other two reasons assigned, are based upon the ruling of the Court on the motion for a new trial, &c., and have reference to the evidence, &c. The record does not profess to contain all the evidence, and we cannot, therefore, determine the points attempted to be made.
So far as any other questions are raised in the case, they have been already settled in the case of the same appellants v. Tilton, 12 Ind. R. 3, and the same v. Maiden, id. 10.
Per Curiam.The judgment is affirmed with 5 per cent, damages and costs.