Baker v. Baker
| Decision Date | 31 October 1879 |
| Citation | 70 Mo. 134 |
| Parties | BAKER v. BAKER, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.
AFFIRMED.
William Heren & Son for appellant, cited Facey v. Fuller, 13 Mich. 527.
Rea & Williams for respondent, argued that the statute does not require the justice's docket to show that proof was heard. 2 Wag. Stat., § 15, 831; 1 Greenleaf Ev., (8 Ed.) p. 25, § 19. The omission does not affect the judgment. 2 Wag. Stat., § 15, p. 839; Freeman on Judgm 47, § 53; Fish v. Emerson, 44 N. Y. 377; Barrett v. Garragan, 16 Iowa 44. It will be presumed that evidence was heard. Freeman on Judgm., p. 533, § 524.
On the 17th day of May, 1876, plaintiff brought suit against defendant before Philip Sigrist, a justice of the peace of Rochester township, of Andrew county, Missouri, on an account for $90; summons issued returnable on the 3rd day of June, 1876. On the 3rd day of June, 1876, the constable returned said summons, duly served, &c., and on that day plaintiff procured judgment by default against defendant for said sum of $90, with interest at six per cent. and cost, &c. On the 20th day of January, 1877, plaintiff assigned said judgment to I. R. Williams, for value received. On the 17th day of February, 1877, execution issued on said judgment. On the 29th day of March, 1877, notice having previously been given to the plaintiff and also the assignee of said judgment, defendant presented a motion to said justice to set aside said judgment, alleging as his reasons therefor various irregularities. Upon a hearing of said motion the same was overruled and defendant appealed to the circuit court, and in said court defendant abandoned all the reasons in his motion to set aside the judgment save one, and the cause was submitted on the following agreed statement, viz: That this is a proceeding to set aside the judgment herein rendered by the justice by default on the account in suit, for the reason that the transcript fails to show that any evidence was taken, or proof had as to the allegations of plaintiff's claim. It is agreed that the record does not show that proof was heard as to the allegations of plaintiff's claim, but that in fact the justice did swear and examine witnesses and hear said proof, and on said proof rendered the judgment herein. On these facts the court sustained the finding of the justice in refusing to set aside said judgment, and the case is before us on appeal.
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Hammond v. Darlington
...implication, constituted a finding that the order had been made and executed. [Leonard v. Sparks, 117 Mo. 103, 22 S.W. 899; Baker v. Baker, 70 Mo. 134.] In the expression of the Supreme Court (Seidel v. Cornwell, supra), it was held that where a purchaser at an execution sale upon a lien ju......
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Chicago, Rock Island & Pacific Railway Co. v. Young
...having jurisdiction and proceeding with the case regularly to final judgment, it will be presumed that proof was regularly made. Baker v. Baker, 70 Mo. 134; Freeman on Judg. secs. 53, Sherwood, J. Ray, J., absent. OPINION Sherwood, J. By certiorari, the Chicago, Rock Island & Pacific Railwa......
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Karnes v. Alexander
... ... of the peace. Crowley v. Wallace, 12 Mo. 147; ... Franse v. Owens, 25 Mo. 334; Waddell v ... Williams, 50 Mo. 222; Baker v. Baker, 70 Mo ... 136; Fulkerson v. Davenport, 70 Mo. 545; Coffee ... v. City, 36 Wis. 124; Roach v. Company, 71 Mo ... 398; Colvin v. Six, 79 ... ...
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Hammond v. Darlington
...constituted a finding that the order had been made and executed. Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, 38 Am. St. Rep. 646; Baker v. Baker, 70 Mo. 134. In the last expression of the Supreme Court (Seidel v. Cornwell, supra) it was held that, where a purchaser at an execution sale up......