Doan King & Co. v. Boley
| Citation | 38 Mo. 449 |
| Parties | DOAN KING & CO., Defendants in Error, v. BOLEY & MOORE, Plaintiffs in Error. |
| Decision Date | 31 October 1866 |
| Court | United States State Supreme Court of Missouri |
Error to Jefferson Circuit Court.
John L. Thomas, for plaintiffs in error.
Abner Green, for defendants in error.
I. It is too late to raise the objection in this court, that the original summons did not run in the name of “The State of Missouri.” Such a writ is not void, but at most only voidable and may be amended--Lawther v. Agee. 34 Mo. 372; Davis v. Wood, 7 Mo. 162; Jump v. Batton's creditors, 35 Mo. 193.
II. The process, if defective, is cured by the 19th section of Practice in Civil Cases, p. 1255, R. C. 1855. If objection had been made to the summons in the court below, the process could have been amended after judgment under said section.
Plaintiffs instituted suit in 1862, in the Jefferson county Circuit Court against the defendants on a promissory note. A summons in the usual form, except that it did not run in the name of the State of Missouri, was issued and served upon the defendants. There was no appearance on the part of the defendants, and judgment was duly given against them in behalf of the plaintiffs. The summons commenced, “To the sheriff, &c., and not “The State of Missouri to the sheriff,” as prescribed by the Constitution, and this is the only error urged for a reversal. It is insisted by the counsel for the defendants in error, that as no exceptions were taken, or motion made for a new trial, in the court below, this court cannot take cognizance of the matter here. In the case of Bateson v. Clark, 37 Mo. 31, the distinction between what is properly matter of error and exception was briefly examined and pointed out, and the rule laid down, that error apparent on the face of the record, which includes the pleadings, summons and judgment, may be taken advantage of by writ of error in this court whether any motion was made or exceptions taken in the court below or not.
It is not contended that the writ was entirely void by reason of not running in the name of the State, but that it was simply voidable. Undoubtedly it would have been quashed on motion of the court below, or it might have been amended on a direct application for that purpose. It has been held that the provisions of the State Constitution requiring all writs and process to run in the name of the State of Missouri is merely directory, and therefore an omission to comply with the...
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The State ex rel. Wells v. Hough
... ... Marney, 1 Mo. 537; Little v. Little, 5 Mo. 227; ... Davis v. Wood, 7 Mo. 162; Doann, King & Co. v ... Boley, 38 Mo. 449; Jump v. Batton's ... Creditors, 35 Mo. 197; Hansford v ... irregularity. Junk v. Batton, 35 Mo. 196; Doan ... v. Boley, 38 Mo. 450; State v. Foster, 61 Mo ... 550; Riesterer v. Horton L. & L. Co., ... ...
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Freeland v. Williamson
...irregularities in the summons or process, or return thereof, as complained of in this case, are cured by said Sec. 672, R. S. 1899. Doan v. Boley, 38 Mo. 449; Hensford Hensford, 34 Mo.App. 292; Andrews v. Buckbee, 77 Mo. 428. (3) The cases cited by appellants in support of the proposition t......
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Creason v. Yardley
...an irregularity, yet it can be taken advantage of (as was done in this case) by motion to quash." It is true that this court, in Doan v. Boley, 38 Mo. 450, "It is not contended that the writ was entirely void by reason of not running in the name of the State, but that it was simply voidable......
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Sligo Furnace Co. V. Laidley
...run in the name of the state is merely directory, and its omission does not invalidate the execution. Davis v. Wood, 7 Mo. 165; Doan v. Boley, 38 Mo. 449; Creason v. Yardley, 272 Mo. 285, 198 S. W. 830. So, also, is the requirement that all writs shall be issued under the seal of the court,......