Blair v. Caldwell

• Decision Date: 30 April 1834
• Citation: 3 Mo. 353
• Parties: BLAIR v. CALDWELL.
• Court: Missouri Supreme Court

3 Mo. 353

BLAIR

v.CALDWELL.

Supreme Court of Missouri.

April Term, 1834.

M'GIRK, C. J.

An action of debt was brought by Blair against Caldwell and Alexander. The plaintiff had judgment. The action was founded on a record from the State of Kentucky. The first plea was nul tiel record; the second was payment; the third was accord and satisfaction. On the trial, the defendants, by counsel, objected to the authentication of the record, the court overruled the objection. The certificate of the Judge to the record was thus: “I certify that the certificate of the clerk is in due form of law.” The act of Congress on the subject of authenticating records from one State to another, says, the Judge shall certify that the attestation is in due form. The objection here is, that the Judge in Kentucky has used the words “certificate of the clerk,” instead of the words “the attestation of the clerk,” and has superadded the words “of law.” It is argued that attestation and certificate are not the same thing. It is insisted by Mr. Hunt, that attestation of a record means that the clerk has affirmed that the record is true, and includes that the signature of the clerk as well as the judicial seal of the court, and that a certificate does not necessarily include the seal.

We are of opinion there is no force in this objection, as to the words “of law,” being added to the Judge's certificate; we are of opinion that amounts to nothing more than what is implied without those words being written or added, and cannot do any injury.^(a)

The record shows that after judgment was obtained in Kentucky, the plaintiff had an execution on the judgment. That a levy was made on property, and that the sheriff returned the property to the defendant, on his giving a bond with security to pay the debt at the end of three months. It was insisted by counsel for defendants, that on the issue of nul tiel record, the plaintiff must show a good judgment, which must appear to be unsatisfied, or at least it must not appear to be satisfied. We are of opinion that if it appear from the record produced that there has been satisfaction thereof, that the record is not such a one as the plaintiff has declared upon.

The authority produced shows satisfactorily, that when there has been a levy on the defendant's property, or when a bond has been taken by the sheriff, the judgment is satisfied, though the sheriff should never sell the property; in such case the party must look to the sheriff.^(b) See 12 John. 207...