Becker v. Atchison, Topeka & Santa Fe Railway Co.

Citations

• 70 Kan. 193
• 78 P. 408
• 1904 Kan. LEXIS 26

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Stock — Demand Necessary — Limitation of Action. In an action brought in a justice’s court by the owner of a mare killed on an unfenced line of railway to recover the value of the mare, and attorney’s fees, under sections 5859 to 5863 (inclusive) of the General Statutes of 1901, no demand was alleged in the plaintiff’s bill of particulars. After the action had been pending in different courts for more than three years from the date of the loss of the animal, the owner dismissed his action without prejudice, and brought another, alleging a demand. Held, that the statute of limitations barred a recovery, and that the new action did not come within the saving provisions of section 4451 of the General Statutes of 1901.</p> <p>2. - Cases Distinguished, and Followed. The cases of Hall v. Hurd, 40 Kan. 374, 19 Pac. 802, and Seaton v. Hixon, 35 id. 663, 12 Pac. 22, distinguished, and the cases of Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, and West v. Bank, 66 id. 524, 72 Pac. 252, 63 L. R. A. 137, 97 Am. St. Rep. 385, applied and followed.</p>