Dillon v. Rash

• Citation: 27 Mo. 243
• Parties: DILLON et al., Defendants in Error, v. RASH, Plaintiff in Error.
• Decision Date: 31 July 1858
• Court: United States State Supreme Court of Missouri

27 Mo. 243

DILLON et al., Defendants in Error,

v.RASH, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1858.

1. An execution issued by a justice of the peace cannot regularly be returned before the return day thereof; should it be returned nulla bona by the constable, and a transcript of the judgment of the justice be filed in the office of the clerk of the Circuit Court, and an execution be issued by said clerk upon said certified judgment before the return day of the execution issued by the justice, the Circuit Court should quash such execution.

Error to Atchison Circuit Court.

A judgment was rendered by a justice of the peace against one Rash. On the 2d of March, 1858, an execution was issued by said justice on said judgment. On or about the 27th of March, the constable returned said execution endorsed: “no goods and chattels found,” etc. On said 27th of March, an execution issued from the office of the clerk of the Atchison Circuit Court upon a transcript of the said judgment, returnable to the April term, 1858, of said court. This execution was levied on certain real estate of defendant Rash, who moved the court to quash said execution. The court overruled the motion.

Loan, for plaintiff in error.

I. The execution issued without the authority of law. The execution could not be legally returned by the constable before the time limited by the writ for its return, so as to authorize an execution to issue from the office of the clerk of the Circuit Court. (See 5 Wend. 276; 9 Wend. 368.)

Patterson, for defendant in error.

SCOTT, Judge, delivered the opinion of the court.

The conduct of the plaintiffs in this proceeding has very much the appearance of a design to deprive the defendant of an advantage secured to him by law, and we see no reason why they should not have been arrested in their course. The law was made as well for defendants as for plaintiffs. Whilst it does justice to the creditor, it also intended to show a little indulgence to the debtor.

It is well known that the periods between the date and return of executions in justices' courts were fixed with a view to give defendants a little time to prepare for their payment. Formerly, all executions from justices' courts, without regard to their amount, were returnable in thirty days. The law has since been changed for the relief of defendants.

We are not prepared to say that a sale under an execution founded on a return like that in the present case would be regarded as a nullity in a...