Davis v. Wood

• Decision Date: 30 September 1841
• Citation: 7 Mo. 162
• Parties: DAVIS v. WOOD.
• Court: Missouri Supreme Court

7 Mo. 162

DAVIS

v.WOOD.

Supreme Court of Missouri.

September Term, 1841.

ERROR TO CIRCUIT COURT OF SALINE COUNTY.

TODD, for Plaintiff. 1st. That there was no judgment in one of the cases in the transcript of judgment offered. It contains a statement of debt and interest and costs; and the entry is “the defendant appeared and acknowledged that the above is just.” 2nd. The transcripts show no written confession of judgment signed by the party, and is void by statute. See Digest. 3rd. The executions purporting to issue thereon, do not run in the name of the State, and are void. The caption of each is “State of Missouri, County of Saline, ss. to-wit: To the Constable,” &c. 4th. The law is, that the tools of a mechanic are exempt from levy by execution; the owner may lawfully sell them, although executions are in the hands of the officer. 5th. The instructions of the defendant misled the jury, and were not predicated on any evidence, for the officer did not require the trespass, and did not perform it himself, and it was not done in aid of the officer. 6th. The instruction of defendant is erroneous--that any lien existed in favor of the executions, before levy. See Mo. Digest, 362, 32, 258, 256, 337, 318, 319; 1 Mo. R. 537; Fowler v. Watson, 4 Mo. R. 27.

WINSTON, for Defendant. 1st. That the implements of trade and tools of Harlow were, under the circumstances of the case, liable to the lien of the executions in the hands of the constable, at the time they were sold to the plaintiff. 2nd. That the defendant was justifiable in breaking into the house.

SCOTT, J.

The plaintiff brought an action of trespass quare clausum fregit, against the defendant for breaking and entering his close, and taking away his goods. The defendant pleaded not guilty and justification, alleging that he acted as agent of one Thomas Duncan, who had obtained two judgments against one Harlow, on which executions were issued and delivered to the constable That the said Harlow had goods locked up in the house in the declaration mentioned, and that the plaintiff was requested to open the door of the house, that the executions might be levied, which he refused to do; and that therefore the said defendant by the commandment, and in aid and assistance of the constable, opened the door of the house, and thereupon the constable entered and seized the goods.

It appears from the evidence preserved in the cause, that the defendant, as agent for Thomas Duncan, obtained two judgments and executions against one Harlow. Harlow was a wheelwright. A short time before the levy of the executions, he went to the plaintiffs in the night, and told them he was indebted to them, and that he was about to leave the neighborhood; that he would deliver them the key of his shop, that they might have the property left in it to pay themselves, and the key was delivered. Harlow left the neighborhood that night clandestinely, and has not been since heard of. He carried on his trade until he absconded. The goods were locked up in the shop he had occupied and consisted mostly of the implements of his trade. That shortly after Harlow absconded, the defendant, with the constable, came to the plaintiffs and demanded of them the key of Harlow's shop, in order that he might get the goods in it to satisfy the executions. The plaintiffs refused to deliver the key, alleging that the house was in their possession, and that they owned the goods, having purchased them of Harlow. The constable then declined breaking open the door, but told the defendant if he would open the door, he would levy on the goods found in the house. The defendant then forcibly raised the door off the hinges, and then the constable entered, and seized the property and sold it. Upon the trial, the plaintiffs submitted to a non-suit, and afterwards moved to set it aside for the misdirection of the judge, and because improper evidence was admitted. The judgment offered in evidence, after stating the names of the parties, and the proceedings on the summons, runs thus, “the defendant appeared and acknowledged that the above is just on the day of trial; also, 81 1/4 cents for justice's costs. Given under my hand,” &c. The plaintiff's counsel contends that the above is not such a confession as is required by the statute. The act concerning Justices' Courts, article second, section four, says: Suits may be instituted before a justice, either by the voluntary appearance and agreement of the parties, or by process. The second section of the sixth article, prescribing the mode of taking confessions of judgments, relates to confessions taken where there is no process. In this case there was process, and the party appeared on the day of trial, and acknowledged the justice of the demand. If he had appeared and said nothing, or had refused to appear, the demand being liquidated, judgment would have been rendered against him. An express...