Neil v. Dillon
| Citation | 3 Mo. 59 |
| Parties | NEIL & FERGUSON, EXR'S OF FERGUSON, v. DILLON. |
| Decision Date | 30 April 1831 |
| Court | United States State Supreme Court of Missouri |
ERROR FROM CALLAWAY CIRCUIT COURT
Neil and Ferguson sued Dillon before a Justice of the Peace, and judgment was given against them. They appealed to the Circuit Court, and on motion of the appellee the cause was dismissed. The appellee moved the Circuit Court to dismiss the appeal for the following reasons: First, Because the note on file was not served on the defendant with the summons, nor did it go out with the summons. Second. Because said note on file is made payable to John Ferguson, and the suit and proceedings are in the name of the executors of John Ferguson, sen'r.
The act to establish Justices' Courts, provides that in all suits a brief statement of the cause of action and the amount claimed, shall be made in writing, and filed with the justice, and the same or a copy annexed to the summons; and that the service thereof shall be by reading the original summons, and the statement or a copy annexed thereto in the hearing of the defendant, & c. See Revised Code, pages 473-4. By an act approved 23d Dec., 1826 it is declared, that so much of the former law as requires that in all suits for debt, or on account, a brief statement of the cause of action shall be made and filed with the justice, shall be and is repealed. Provided, that no justice of the peace shall issue his summons or warrant, unless the plaintiff by himself or agent, shall have filed with the justice the bond or note, bill or account, on which the demand is founded.
On the part of the appellee it is contended, that by a fair construction of the two acts, the justice is required to annex a copy of the bond, bill or account on which the demand is founded, to the summons, and that the service must be by reading the original summons, and a copy of the bond, bill, note, or account, &c.
For the appellant it is contended, that even if the construction of the statutes contended for by the appellee be correct, yet the appellee had waived his right to take advantage of this omission, by appearing and defending before the justice.
It is not material to decide now whether the appellee, by defending before the justice of the peace, has waived his right to take advantage of an omission of the plaintiff, to file his note or brief statement. The Legislature in repealing the provision requiring a brief statement of the cause of action, & c., to be filed, repealed, necessarily, the...
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