Hill v. Young

• Decision Date: 30 April 1834
• Citation: Hill v. Young, 3 Mo. 337 (Mo. 1834)
• Parties: HILL v. YOUNG.
• Court: Missouri Supreme Court

3 Mo. 337

HILL

v.YOUNG.

Supreme Court of Missouri.

April Term, 1834.

WASH, J.

Hill brought an action of forcible entry and detainer against Young, before two justices of the peace, of Lincoln county, and on 24th June, 1833, got a verdict and judgment for the recovery of eighty acres of land. After the adjournment of the justicest court, Young made application to the justices separately at their respective homes for a new trial, to which they separately assented. On the 12th of July thereafter the justices met and granted a new trial, and appointed the 3d of August for the time of trial. On the 20th of July the justices issued a notice to Hill that a new trial had been granted; which notice does not appear to have been served on Hill.

On the 3d of August the cause was called for trial, and Hill not appearing, judgment of non-suit was entered up against him, also a judgment for the costs. On the same 3d of August Hill filed a bond for the costs with the clerk of the Circuit Court, and obtained a writ of certiorari, which seems not to have been executed. On the 19th of August, 1833, a second writ of certiorari was sued out and served on the justices. At the September term of the Circuit Court, and on the first day of the term, the justices returned the writ which had been served on them, and filed a record of their proceedings with the clerk of the Circuit Court, without connecting the record with the writ, or stating that the record was returned in obedience to the writ. On the first day of the term the counsel for Young moved the Circuit Court “to dismiss said certiorari and proceedings under it, because the justices of the peace to whom the said writ was directed, and on whom it was served by the sheriff, have failed to make return thereon.” On the same day the counsel for Hill, regarding the return made by the justices as sufficient, proceeded to assign his errors. He moved the court also for the justices to have leave to amend their return. It does not appear from the record whether the motion to dismiss the writ of certiorari, or the motion for leave to amend the return, was first made. The motion to dismiss stands first in order in the record, and was sustained, and that to amend overruled. On the following day the counsel for Hill moved the Circuit Court for a writ of mandamus to compel the justices to make return, & c., which was also overruled. The judgment of the court upon these several motions was excepted to by Hill's counsel, and Hill...