Bobb v. Thomas
| Citation | 4 Mo. 222 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 31 October 1835 |
| Parties | JOHN BOBB v. THOMAS & JOHN K. GRAHAM. |
ERROR TO THE ST. LOUIS CIRCUIT COURT.
This was an action of debt, instituted in the Circuit Court, against John Bobb and Jabez Vigus, on a Kentucky judgment, the writ was served on Bobb only, who appeared, and pleaded to the action, and had a verdict and judgment rendered against him, to reverse which judgment, he has come with his writ of error to this court. Bobb pleaded in the Circuit Court a variety of pleas, to some of which demurrers were filed and sustained, and on the others, issues were taken and found against him. The first issue joined between the parties, was on the plea of nul tiel record of the Kentucky judgment sued on; various errors have been assigned, and a great number of points raised by the counsel for the plaintiff in error, growing out of the other pleadings in the cause. From the view which this court has taken of the law, as applicable to the case arising out of this first issue, it becomes unnecessary to look into the other pleadings, and we shall not attempt to settle or examine the law, on any of the other issues in the cause. On the trial of the cause in the Circuit Court, the cause was submitted to the court, sitting as a jury, to find the facts: and the court found that there was such a record, &c. A motion was made for a new trial, on the ground (amongst other reasons) that the court, sitting as a jury, had mistaken the evidence, and found upon the first issue improperly for the plaintiffs; the motion for a new trial was overruled, and it is now assigned for error that the court erred in finding this issue for the plaintiffs, and in refusing to grant a new trial. For the plaintiff in error, it is insisted, that the Kentucky judgment is null and void, for that it appears from the record: First, that the writ which was sued out in that case, was made returnable to no day whatever. Second, that there was no legal service, nor return of the writ, so as to show that the plaintiff in error had any oppertunity to make defense, nor any appearance in the cause. The writ runs in these words, “The Commonwealth of Kentucky, to the Sheriff of Fayette county, greeting: you are hereby commanded to take John Bobb and Jabez Vigus, trading under the style and firm of Bobb & Vigus, if they be found within your bailiwick, and them safely keep, so that you have their bodies before the Judges of our Fayette Circuit Court, at the court house in Lexington, on the first day of March term, to answer,” &c. The writ was issued on the 24th of December, 1816, the declaration was filed on the 17th of November, 1817, and the judgment by default, was taken on the 25th of November, 1817; the writ is endorsed, “executed on Vigus, 27th ...
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