Fowler v. Watson

• Decision Date: 31 May 1835
• Parties: JAMES D. FOWLER v. THOMAS WATSON.
• Court: Missouri Supreme Court

4 Mo. 27

JAMES D. FOWLER

v.THOMAS WATSON.

Supreme Court of Missouri.

May Term, 1835.

APPEAL FROM CHARITON CIRCUIT COURT.

TOMPKINS, J.

Fowler sued Watson before a justice of the peace, where Watson had judgment, and Fowler appealed to the Circuit Court. In that court Watson moved to dismiss the appeal, and the court on his motion did dismiss it. To reverse the judgment of the Circuit Court, Fowler appeals to this court. On inspection of the transcript of the papers sent up to the Circuit Court by the justice, we find that the summons reads thus:

“STATE OF MISSOURI,

)

County of Chariton.

)

To the Constable of Prairie township--Greeting:

SIR--You are hereby commanded,” &c.

The Constitution of the State requires that all “writs and process” shall run in the name of the State of Missouri. See 19th section of 5th article of the Constitution. The form of a summons (see § 3 of the act to establish justices courts, passed 21st Feb. 1825), made conformably to the constitutional requisition, is in these words: “The State of Missouri, To the Constable of ____ township in the county of ____, you are hereby commanded,' & c. In the case before this court the writ runs in the justice's name. There being no writ of the State to bring the defendant before the justice, all the proceedings in this cause are void.

The Circuit Court did not err in dismissing the cause. Many cases of this kind have been decided by this court. See Charless v. Marny, 1 Mo. R. 537, ^(a) and the case of Street and Beckett, which was decided at Fayette last year, but is not published. For the reasons above given, the judgment of the Circuit Court is affirmed.

(a). See note to this case.