Anderson v. Brown

• Decision Date: 31 October 1845
• Citation: 9 Mo. 646
• Parties: ANDERSON v. BROWN (OF COLOR).
• Court: Missouri Supreme Court

9 Mo. 646

ANDERSON

v.BROWN (OF COLOR).

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

A. TODD, for Appellant. 1. The said writ was illegally issued, because issued on hearsay alone. The recital in the writ shows that it was issued on Dayton's affidavit, and the matter of the affidavit which is the basis of the writ, is only the information to Dayton by Paulding. 10 Wend. 420; 11 Johns. R. 175. 2. The judgment as against Anderson at least was illegal, because Anderson was not summoned under said writ, nor had any day in court, or other opportunity to defend or purge himself, and by the recital in the judgment, it appears that the court had no other evidence than said affidavit. A judgment against a person not brought into court is illegal and error. 7 Mo. R. 433; Oliver Caldwell v. Rachael Lockridge, Adm'x of Jones Lockridge, deceased, 9 Mo. R. 3. If the court below thought Anderson guilty of any willful disobedience of any process or order, lawfully issued or made by it, as provided for by section 37 of the act to establish Courts of Record, &c., p. 160 of the Rev. Code of 1835, then by section 59 of said act, Anderson was entitled to a notice of the accusation and reasonable time to make defense. 4. Section 4 of the act for Suing for Freedom, p. 285, Rev. Code of 1835, does not authorize judgment against the person having the Lagro, and summoned. But if inferred, still Anderson was not summoned.

MCBRIDE, J.

On the 19th January, 1844, B. B. Dayton makes affidavit setting forth that on the 17th January, 1844, Squire Brown commenced suit, by consent, against Charles R. Anderson for his freedom in the St. Louis Circuit Court, and that an order was made by said court permitting said Brown to sue as a poor person, and that said Dayton be assigned as his counsel; that said Brown have reasonable liberty to see his counsel and attend the court, and that he be not removed out of the jurisdiction of said court, nor be subjected to any severity on account of his suit; that the defendant appeared by his attorney, consented to the filing of the declaration and the order made in the cause, and filed a plea to the declaration, on the said 17th January, 1844. The affiant further sets forth that he is informed by John Paulding, a constable, that he, said Paulding, at the request of said Anderson, on the said 19th January, arrested said Brown and took him to the steamboat Admiral, for the purpose, as said Anderson told him, of sending said Brown south, and that said Brown was put on said boat, which was bound for New Orleans, and which with said Brown has departed for that place; and said Dayton believes, therefore, that said Brown is now about being removed out of the jurisdiction of this court.

Thereupon the judge of the Circuit Court issued a writ to the sheriff of St. Louis county, in which it is recited that he is satisfied by the foregoing affidavit that said Brown is about to be removed, &c., and commanding said sheriff to seize said Brown and bring him before the judge on the 20th January, instant, at 9 o'clock, A. M., at the county jail, and that he summon to appear, at the same time and place, any person claiming or having in possession the said Brown.

The sheriff returned that on the 20th January, 1844, he seized said Brown, and had him before the judge, as required by the writ, and that he summoned Israel Morris, he being the person who claimed said Brown, and had him in possession, to be and appear at the jail of said county as aforesaid. No further proceedings appear to have taken place before the judge. But afterwards, on the 26th January, 1844, the Circuit Court rendered a judgment in the premises, wherein the foregoing proceedings are recited; and further that said Morris, at the time and place aforesaid (to-wit: 20th January, at the jail, &c.), though demanded came not; whereupon it is considered by the court, that said Morris and said Anderson pay the costs and charges in this behalf expended, &c.

On the 12th February, 1844, Anderson filed his motion to set aside said judgment as against him, because the same is illegal, having been rendered without authority of law; which motion was overruled. On the 29th of said month Anderson riled another motion to set aside the decision of the former motion, which was also overruled, to which decision of the court the said Anderson excepted, and has brought the case here by appeal.

The appellant's counsel insists that the writ was illegally issued, because issued...