Montgomery v. Farley

• Decision Date: 30 June 1838
• Court: Missouri Supreme Court
• Parties: ALEXANDER MONTGOMERY v. SAMUEL FARLEY & JOHN ROBINSON.

5 Mo. 233

ALEXANDER MONTGOMERY

v.SAMUEL FARLEY & JOHN ROBINSON.

Supreme Court of Missouri.

June Term, 1838.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

B. MULLANPHY, for Plaintiff in Error. 1. At the time of the proceedings before the justice, Montgomery was not within the justice's jurisdiction, and consequently that the proceedings before the justice were coram nonjudice. 2. The facts present a case of utter variance. The execution on which the property was sold professes to issue in aid of a transcript from the justice of a judgment for debt of $88 01, and interest $1 76. The execution issued from the justice professes to issue on a judgment of debt of $88 03, and interest $1 76. The justice's transcript, offered in evidence, professes to be of a judgment of debt of $88 01; interest, $1 76. 3. As to the legality of the transcript filed in the Circuit Court clerk's office, we find in sec. 1 of an act establishing justices' courts, that no justice of the peace shall issue his summons, unless the plaintiff, by himself or agent, shall have filed with the justice the bond, note, bill, or account, on which the demand was founded. It does not appear, from the justice's transcript, that any note was ever filed with him. On that fact of filing rested the justice's jurisdiction. That fact must have been averred in the justice's transcript, to make it a transcript of a cause over which the justice had any jurisdiction.

H. S. GEYER, for Defendant in Error. 1. The questions presented by this record are purely questions of evidence. The transcripts filed in the clerk's office are records of the Circuit Court, and, as such are undeniably competent. Rev. Code, 1825, p. 484; 1835, p. 364. Such transcripts are evidence, whether filed in the clerk's office or not, Rev. Code, 1825, 362; 1835, 250. 2. The certificate of the clerk of the county court and the copies of executions are evidence by statute, Rev. Code, 1825, 475; 1835, 250. There is some variance between one of the executions and the judgment before read, but that is a question not of admissibility, but of legal effect when read. 3. The execution No. 41, is expressly authorized by law, Rev. Code, 1825, 484, and no legal objection to its admission exists. The evidence offered by the plaintiff, and rejected by the court, is so clearly inadmissible as to require no comment.

TOMPKINS, J.

This was an action brought by Montgomery, the plaintiff in error, against Farley, for the recovery of a house and lot. Robinson was admitted as co-defendant. Judgment was given for the defendants, and to reverse it this writ of error is prosecuted. The plaintiff proved possession in himself, and those under whom he claimed, by deed, dated 27th March, 1828, for several years before the date of this deed. The defendants read in evidence the transcript of a judgment recovered against the plaintiff and another, for $88 01 debt, and $1 76 costs, filed in the office of the clerk of the Circuit Court of St. Louis county, 27th April, 1830, and a certificate of the clerk of the county court of St. Louis county, that among the dockets, files, books and papers of Joseph N. Garnier, late a justice of the peace, delivered to him and remaining in his office, is an execution in favor of Nathan Gildersleve v. Montgomery and Jones, reciting a judgment for $88 03 debt, and $1 76 costs. The judgment above mentioned was obtained before the same justice and between the same parties. The lot in dispute was sold on an execution issued by the clerk of the Circuit Court of St. Louis county on the transcript of the judgment filed as above mentioned, and...