Boren v. Welty

• Decision Date: 30 September 1835
• Citation: 4 Mo. 250
• Court: Missouri Supreme Court
• Parties: M. & W. BOREN v. WELTY.

4 Mo. 250

M. & W. BOREN

v.WELTY.

Supreme Court of Missouri.

September Term, 1835.

APPEAL FROM THE CAPE GIRARDEAU CIRCUIT COURT.

MCGIRK, J.^a1

Welty brought an action before a justice of the peace, against the defendant for killing a horse, on the trial of which the plaintiff had judgment.The defendant prayed an appeal, but failed to perfect the same by giving the recognizance required by law.The papers, however, were brought up to the Circuit Court and dismissed.The defendants(the Borens), then made an affidavit, showing to the court that when the trial was had and the appeal prayed McClean, the justice, informed them that the law allowed twenty days to appeal in, and not knowing that this advice was false, they rested till after the expiration of the ten days allowed by law, after which, and before the expiration of twenty days, they applied to the justice to give the recognizance, and that the justice then said it was too late, and refused to take the recognizance.The affidavit further shows that McClean, the justice, took Matthew Bolen aside, on his first application for appeal, and told him not to be in a hurry, as the law allowed twenty days to appeal in; and to say nothing about it, as the law was a secret, and known only to a few.On this affidavit, the Borens moved the Circuit Court for a writ of certiorari to the justice to send up the proceedings, which was granted, when the writ and proceedings were returned.Mr. Ranney, for the plaintiffs in the certiorari, moved the court to set aside the proceedings of the justice, on the ground of inequality and error; the Circuit Court decided there was no error in the proceedings of the justice, and refused to reverse or otherwise vacate the same.The cause is brought here by appeal.

It seems to be admitted on all sides, that the proceeding of the justice was grossly irregular and erroneous, and indeed we are of that opinion also.But we are told in argument that the Circuit Court refused to set the proceedings aside on the ground that the certiorari had improvidently issued, and the party failed to make out his case by proof.This may be so.There is nothing on the record to show what the proof was, except the affidavit of the party.

Mr. Davis, for Welty, now argues that the Circuit Court has no power to issue a certiorari to bring up proceedings had before a justice, after a trial had before him.

We think this view of the subject is correct.Formerly in this State, an act of the General Assembly, allowed a certiorari to remove the proceeding from before the justice after trial, and it provided that if the proceedings are irregular, they shall be set...