SMITH, J. —
The defendant appeals from a judgment against it for the sum of $250, rendered on appeal from a justice's court. The judgment is for damages for the killing of a horse and mare of the respondent by the appellant's train; and, the amount involved being less than $300, the respondent urges that the case is not within the jurisdiction of this court. There is no reply from the appellant on this point; but it seems that the point was urged by the defendant in the lower court on the ground that the case involved a question of title as to real property. There is, however, nothing in this contention. The first count of the complaint, indeed, alleges that the plaintiff's horse entered upon the track through a gap in defendant's fence, which was negligently and carelessly left open; and in the amended answer it is alleged, in effect, that the land adjacent to the fence, where the gap was, was at all the times mentioned in the complaint the property of Kittie Colburn, and that plaintiff did not have any right or title thereto; and the court finds that this and all the other allegations and denials of defendant's answer are untrue, which is, in effect, to find on a question as to the title of the land. And it is also true that it appears from the evidence, without contradiction, that the land was the land of Kittie Colburn, and that it was expressly admitted by the plaintiff on the trial that he neither had nor claimed any interest therein. But, looking at the complaint, it will be seen that it is alleged that the death of the horse resulted from the negligence and recklessness of the defendant's employees after the horse was on the track; and this must be taken as the gist of the action. The allegation and finding as to the title of Kittie Colburn and the plaintiff, respectively, to the land adjacent to the railroad, are therefore immaterial.
The appeal must therefore be dismissed, and it is so ordered.
Gray, P. J., and Allen, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 22, 1905.