Burke v. Miller

• Decision Date: 31 July 1870
• Parties: EDMUND BURKE, Plaintiff in Error, v. ELIJAH MILLER AND GILES LEE, Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 258

EDMUND BURKE, Plaintiff in Error,

v.ELIJAH MILLER AND GILES LEE, Defendants in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Ewing & Smith, with Owens & Wood, for plaintiff in error.

I. The judgment being for more than the justice had jurisdiction, the same is void, and no title passes by a sale thereunder. (8 Mo. 264.) The transcripts offered in evidence were

inadmissible. They do not correspond with the judgment recited in the said deed.

II. The executions could not issue on transcripts from clerk's office until the executions issued by the justice had been legally returned, and it was otherwise in this case.

III. The records of the transcripts of judgments do not show that a return was indorsed on the executions issued by the justice nulla oona, as the law requires; nor was there any other evidence of that fact filed in clerk's office. (R. C. 1855, p. 962, § 19.) The mere statement of the fact contained in the certificate of the justice of the peace is not sufficient to show such return. The “indorsement of the constable on the execution” must be certified by the justice. (Carr v. Youse, 39 Mo. 346; Murray v. Laften, 15 Mo. 621.)

Gordon, Draffen & Muir, for defendants in error.

The court decided correctly in permitting the defendant, Giles Lee, to read in evidence the sheriff's deed under which he claims title, as the sale took place under execution issued on transcripts of a justice of the peace, which had been filed in the circuit clerk's office. The deed is sufficient and contains all the recitals required by the statute. (43 Mo. 322; Jackson v. Walker, 4 Wend. 463; Brown v. Betts, 13 Wend. 30.)

CURRIER, Judge, delivered the opinion of the court.

This is an action of ejectment. In the progress of the trial of the cause the defendants offered and read in evidence, against the objections of the plaintiff, a sheriff's deed which purported to convey the premises in dispute to one of the defendants. The deed recited a justice's judgment for $451.34; the filing of four transcripts in the office of the clerk of the Circuit Court; the issue thereupon by the clerk of four executions to the sheriff of the county, and the advertising and sale thereon by him of said premises.

The defendants also introduced and read in evidence, against the objections of the plaintiff, “four records of the four several transcripts, as recorded in the record of transcripts in the circuit clerk's office,” showing four justice's judgments, aggregating $451.34, and that executions had been issued thereon by the justice, with returns showing that no effects were found in the county whereon to levy the same. Upon the refusal of the court to exclude these records and the sheriff's deed from the consideration of the jury, the plaintiff submitted to a nonsuit, and the cause is brought here by writ of error.

The decision of the questions arising upon these records involves an examination of sections 16 and 17, article 7, of the act in relation to justices' courts. (R. C. 1855, p. 961, §§ 16, 17.) These sections are the same as sections 13 and 14, page 839, of Wagner's Statutes, and have constituted a part of the statute law of the State for many years. Although their provisions seem perfectly plain and intelligible, this court has nevertheless been repeatedly called upon to declare their meaning and determine the legal effect of acts done under them.

Section 16 makes it the duty of every justice of the peace to furnish to the party in whose favor he has rendered a judgment a certified transcript thereof ““on demand.” It then makes it the duty of the circuit clerk of the county in which the judgment was rendered, to file such transcript in his office upon its “production,” and “to record the same in a book to be kept for that purpose,” and to enter such judgment “forthwith” in his docket of court judgments, noting the time of filing. It is thus seen that the justice must furnish his transcript “on demand,” and that the clerk is required to file it in his office, when produced for that purpose, “forthwith,” entering the judgment on his judgment docket.

That a party, upon recovering a judgment before a justice, is at liberty at once to file the required transcript in the circuit clerk's office, and thereby secure the advantages contemplated by the statute, is, it would seem, too plain a proposition to admit of a doubt. But the contrary is insisted upon here. It is claimed, for substance, that the judgment creditor must consume the life of an execution in hunting for personal effects of the debtor; that the transcript can be filed so as to have effect, only after the justice's execution has run its course of sixty or ninety days, and been returned unsatisfied for the want of personal effects whereon to levy it. This construction rests on artificial grounds, and is in contravention of the positive requirements of the statute. It can not be tolerated.

The only purpose and effect of filing the transcript is to create a lien upon real estate, as will be seen by an examination of the next succeeding section. That section (§ 17)...