Holliday v. Cooper

• Decision Date: 30 April 1834
• Citation: 3 Mo. 286
• Parties: HOLLIDAY v. COOPER.
• Court: Missouri Supreme Court

3 Mo. 286

HOLLIDAY

v.COOPER.

Supreme Court of Missouri.

April Term, 1834.

ERROR TO THE HOWARD CIRCUIT COURT.

TOMPKINS, J.

Holliday sued Cooper in the Circuit Court of Howard county, where judgment being given for the defendant, the plaintiff sued out his writ of error to reverse the judgment of that court. The facts preserved are as follows: On the 27th day of February, 1833, Holliday caused to be issued a capias from the office of the clerk of the Circuit Court, commanding the sheriff to take the body of the defendant and have him to answer the plaintiff on the first Monday of July, then next, at Fayette. The Circuit Court was by law to be held at Fayette on the fourth Monday of July, instead of the first, when this writ was made returnable. At the regular term, viz: on fourth Monday in July, no business was done; but all the suits were continued over to the 16th day of September. On which day the defendant, who had given bail to the action, appeared and pleaded. He then moved to quash the writ, and the motion being sustained, the court quashed it accordingly.

The plaintiff in error contends that the writ is only voidable, and as such the defect in it was cured by the appearance of the defendant, and by his filing his plea; and he cites Williams v. Rogers, 5 Johnson, 163, and Bettis v. Logan, 2 Mo. R. 2. The case of Williams v. Rogers was one in which the court allowed the return of an execution to be amended, saying that the inaccuracy in the return of the writ rendered it voidable, not void; and it is contended that because our statute requires the declaration to be filed before a writ of summons or capias ad respondendum can issue to bring the defendant into court to answer; therefore such writ is mesne process, and can be amended in any matter. It is very useless to waste time in inquiring whether the writ of summons or capias is with us original process in the common law sense.

It is certain that the capias issued in this cause was the notice to the defendant to appear and answer to the complaint of the plaintiff, and that it ought to have notified him to appear on the fourth Monday in July, and not on the first. The object of the writ being to notify the defendant of the action and the time and place of holding court, how can he be less deceived in a misstatement of the time of holding court by the circumstance of the law requiring the declaration to be filed a few minutes, before the writ is issued. ^(a)

The case of Bettis v. Logan also relied on, was an action for a malicious prosecution, commenced by Logan v. Bettis in the Circuit Court of Wayne county, thence the venue was changed to the Circuit Court of Cape Girardeau county, and from that county to St. Francois county. In this...