#### Jones *vs.*The Americus, Preston and Lumpkin Railroad Company.

[n a summary proceeding before a justice of tbe peace, under §3445 of the code, tbe plaintiff could not recover damages from a railroad for killing bis bogs, and in. tbe same action, in addition to damages of $30 for the killing, recover extra damages to the amount of $30 on account of the failure of tbe employes of the railroad to report tbe killing of the bogs, as provided by §§3038, 3041 of tbe code; and on appeal by tbe railroad company to the superior court, tbe case was properly dismissed on the ground that the justice of tbe peace bad exceeded his jurisdiction in awarding $60 damages.

*(a)*This is a special summary proceeding, and the jurisdiction of tbe justice is limited in amount to $30. Tbe penalty for failure to report is a separate and independent matter from tbe damage done by killing the animals. Therefore, where stock is killed, and the damage does not exceed $30, tbe owner may give notice and have bis damages assessed under the provisions of the code above cited; and where the overseer or track-mender fails to report tbe killing as required by law, tbe owner may proceed in tbe same manner, but in a separate proceeding and upon a different notice; and be cannot consolidate tbe two, as was done in this case.

July 11, 1888.

Justice of the peace. Jurisdiction. Railroads. Before Judge Fort. Webster superior court. October adjourned term, 1887.

Reported in the decision.

D. R. Shepherd and E. E. Hinton, by brief, for plaintiff.

B. P. H ollis and C. B. Hudson, for defendant.

Simmons, Justice.

It appears from this record that the railroad company had killed two hogs belonging to Jones, and that the employes of tbe company had failed to make a report thereof, as required by law. Jones commenced a summary proceeding before a justice of the peace, alleging his damages *804to be not exceeding $30, as provided in section 3045 of the code. In addition to this, he alleged extra damage in the amount of $30, on account of the failure of the employes to report the killing of the hogs, as provided by sections 3038-3041 of the code. The magistrate heard the testimony and awarded 'the sum of $60 damages. The case was appealed by the railroad company to the superior court, as allowed by section 3046 of the code; and when the case was called for trial, it was dismissed by the court, on motion of the appellant, on the ground that the justice of the peace had exceeded his jurisdiction in awarding $60 damages. Jones filed his bill of exceptions, alleging error in this ruling. .

We think the court below was right in holding that the justice of the peace had exceeded his jurisdiction. This was not an ordinary suit in a justice’s court, as was contended by counsel for the plaintiff in error; but was a summary proceeding given by the statute to' owners of stock to recover their damages in a summary manner. The law only requires four days’ notice to be given to the railroad, which notice may be served upon any person connected with the railroad; and it specially restricts the amount of the claim and the jurisdiction of the justice of the peace to $30. In this case, not only was the claim for damages for the killing of the hogs brought before the justice of the peace, but in conjunction therewith and embraced in the same notice, were the damages prescribed in sections 3040-3041, as a penalty for the failure by the employés of the company to report the killing of the hogs.

We do not think the two claims can be joined together in the same notice; (1) because, as already said, the justice of the peace is limited in his jurisdiction in such cases to the amount of $30; and (2) because the penalty is a separate and independent matter. The statute prescribes that the overseer or track-mender shall first be liable; and in case such overseer or track-mender is insolvent, the railroad company shall be liable to pay according to the pro*805visions of section 3040. We think, therefore, that where stock is killed and the damage does not exceed $30, the owner may give notice and have his damage assessed, under the provisions of the code above cited; and where the overseer or track-mender fails to report the killing of the stock as required by law, the owner may proceed in the. same manner, but in a separate proceeding and upon a different notice; and he cannot consolidate the two, as was done in this case. We therefore think the court did right in dismissing the case.

Judgment affirmed.