Brotherton v. Anderson

• Decision Date: 31 May 1840
• Citation: 6 Mo. 388
• Parties: BROTHERTON, ADM'R OF BROTHERTON, v. ANDERSON.
• Court: Missouri Supreme Court

6 Mo. 388

BROTHERTON, ADM'R OF BROTHERTON,

v.ANDERSON.

Supreme Court of Missouri.

May Term, 1840.

ERROR TO THE CIRCUIT COURT OF ST. LOUIS COUNTY.

HAMILTON, for Plaintiff. 1. We are not too late for this application. 2 Mo. R. 229. Nor is the plaintiff estopped from denying the legality of the proceedings before the justice, by having paid the amount of judgment. 6 Cowen, 300; 10 Wendell, 351. 2. The proceedings before the justice were wholly irregular, null and void. Rev. Code, 84, § 3; Rev. Code, 86, § 17; 1 Peters' U. S. C. C. R. 30, 36; 10 Wheat. 192; 2 Cranch, 445; 2 Mass. 113, 5 Har. and Johns. 130.

BOWLIN, for Defendant in Error. The defendant in error relies upon the statute regulating appeals from justices' courts. The 2nd section of the 8th article, “““but no appeal can be taken to a judgment by default, unless within ten days after rendering such judgment, application shall have been made to the justice, by the party aggrieved, to set the same aside, and such application shall have been refused.” § 3d. “No appeal shall be allowed in any case, unless the following requisites be complied with: 1st. The appeal must be made within ten days after judgment rendered; or, when the judgment is by default, within ten days after the refusal of the justice to set aside the default and grant a new trial.”

TOMPKINS, J.

On the fifth day of August, in the year 1837, the said John J. Anderson commenced an action before Joseph Walsh, a justice of the peace of St. Louis county, against J. Snowden Hopkins, by attachment, and James Brotherton, in his life-time, was summoned as garnishee. The suit was founded on a note for $143 55. On the day of trial, Brotherton not appearing, the justice entered up judgment against him for the amount of the note. Execution was issued against Brotherton, and on the 27th day of September, 1837, the execution was returned satisfied. On the 30th day of July, 1838, the said James Brotherton departed this life, and Marshall Brotherton, the plaintiff in this proceeding, became his administrator. On 30th of April, 1839, Marshall Brotherton, administrator of said James Brotherton, dec'd, having given notice to the said John J. Anderson, moved the justice to set aside the judgment, given as aforesaid against said James Brotherton in his life-time, for irregularity. The justice of the peace overruled the motion, Brotherton, the administrator, prayed an appeal which was refused; and having stated these matters, in the form of an affidavit, he applied to the Circuit Court to make an order to the said Walsh, to show cause why he did not grant an appeal in the case above mentioned. The court overruled this motion, and the plaintiff in the motion, Brotherton, administrator as aforesaid, brings the cause into this court by writ of error. In case the garnishee, being duly summoned, shall fail to appear at the proper time, the plaintiff may take judgment against him by default, which may be proceeded on to final judgment, in like manner as in cases between plaintiff and defendant; or, at the option of the plaintiff, the justice shall attach the body of the garnishee, until he shall make full and direct answers to the interrogatories required to be answered. See section 17th of the act to recover debts by attachment before justices of the peace, page 86 of the digest of 1835. To ascertain how to proceed to final judgment, in cases between plaintiff and defendant, we must resort to the act to establish justices' courts, and to regulate proceedings therein.

This being a judgment by default, we must resort to the fifth article of that act. By the first clause, of the first section of that article, if the suit be founded on an instrument of writing, &c., and the plaintiff's demand be liquidated, judgment is given for what shall appear to be due by that instrument. But the second clause of that section provides, that if...