Jeffries v. Wright

• Decision Date: 31 January 1873
• Parties: FELIX JEFFRIES, Respondent, v. W. R. WRIGHT, et al., Appellant.
• Court: Missouri Supreme Court

51 Mo. 215

FELIX JEFFRIES, Respondent,

v.W. R. WRIGHT, et al., Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Miller County Circuit Court.

Geo. T. White, for Appellant.

The judgment is on its face void, as the transcript does not show that the service was made in time to give the justice jurisdiction. (Sanders vs. Rains, 10 Mo., 770 to 73.) Jurisdiction will not be presumed as to inferior courts, (Bersch vs. Schneider, 27 Mo., 101.)

The Circuit Court erred in not permitting us to show that we had not been served with process. (Van Rensselaer vs. Ogden, 7 How. Pr., 297; Wallis vs. Lott, 15 How. Pr, 567; Black's case, 4 Abbott, 162.) The rule that will not call in question the return of the Sheriff or Constable, applies only where the return is very regular on its face. (Stewart vs. Stringer 41 Mo., 407.)

The transcript should show on its face that the justice had jurisdiction. He is confined strictly to the county, and this must appear by record, which is wanting in this case. (State vs. Metzger, 26 Mo., 66; Walker vs. Turner, 9 Wheat., 549; Powers vs. People, 4. John., 292; Thomas vs. Tanner, 14 How. Pr., 426.)

E. L. King & Bro., for Respondent.

There was no material irregularity in the proceedings had before the justice, and if there had been, it appearing that the justice had jurisdiction of the subject matter and that the appellants had actual notice of the proceedings, the irregularities if any, cannot be inquired into in this proceeding; hence we insist that the Circuit Court committed no error in reviving the judgment of the justice. (McNair vs. Biddle 8 Mo., 257; Perryman vs. Relfe, Admr., 8 Mo., 208; Higgins vs. Peetzer. 49 Mo., 152; Martin vs. McLean, 49 Mo., 361.)

The certificate of the Justice, to the transcript, is sufficient, (8 Mo., 208.)

SHERWOOD, Judge, delivered the opinion of the court.

This was a proceeding instituted in the Circuit Court of Miller County, by Felix Jeffries torevive by scirc facias the lien of a judgment obtaimed by him before a Justice of the Peace, against W. R.Wright and others; a transcript of which judgment had been filed in the office of the Clerk of the Circuit Court of that county.

The defendant filed an answer in the nature of a plea of nul tiel record, denying that plaintiff had recovered judgment against them or either of them, and stating that the justice had no jurisdiction over the subject matter, or over either of the defendants, at the time said judgment was alleged to have been rendered; that the judgment was a nullity and was obtained without giving defendants or either of them an opportunity to be heard, etc., and denying that said judgment or the filing of a transcript of the same became a lien. etc. Upon the trial, the plaintiffs offered to read in evidence the transcript of the judgment, which was in this form:

Felix Jeffries vs. W. R. Wright, John Cross, Bluford Barton & John Williams: Justice's Fees.

Four Summons, 25c; Swearing two witnesses, 10c; Judgment, 35c; Subpoena, 22c; Execution, 25c; Constable's fees, serving four Subpoenas, $1.00; Two Subpoenas, 50c; Witnesses, James M.Smith, 50c; W. H. Smith, 50c. Filed Nov., 15th 1862, an account for the use of sorrel mare one year, $90,00.

Summons issued, returnable the 8th day Dec., 1862.

Summons returned as served on the 8th Dec. law day, plaintiff appeared in person. Defendants made default: after hearing allegation it is considered plaintiff have judgment, for $50, and costs of suit. Execution issued the 2d day of Jan., 1863, returnable in sixty days. Returned no property.

Certificate on other page.

E. L. SHORT, J. P.

STATE OF MISSOURI,

)

County of Miller.

)

I, E. L. Short, an acting Justice of the Peace, of Richwood Township in Miller County, certify the foregoing are true and complete transcripts, of the docket entries in the two foregoing cases, had before me.

Given under my hand, this the 10th day of March, 1863.

E. L. SHORT, J. P.

Defendants objected to this transcript being read in evidence and assigned as grounds of such objection:

That it did not appear from the face of said transcript, that defendant had been properly served in Miller County within the proper time, that the Justice waited three hours for defendant, or that he heard any proofs, and rendered judgment for so much as the testimony showed he was entitled to, and that there was no proper certificate of the justice to the transcript.

These objections being overruled, and the transcript read, defendants excepted. “Plaintiff rested his case.”

Defendants then offered to show by parol evidence that the Constable never served the summons upon them, which was alleged to have been served in the transcript.

This the court refused to permit them to do, and they again excepted. The Court then gave judgment reviving the lien of the judgment.

Defendants then, after moving unsuccessfully for a new trial and in arrest, bring the case here by appeal.

Section 53, p. 598, 1 Wag. Stat., provides: “Copies of proceedings before Justice of the Peace, certified by the justice before whom the proceedings are had, shall be evidence of such proceedings, or by him in whose lawful custody they are.”

“And § 15, 2d, Id., p. 839, provides:

No judgment rendered by a Justice of the Peace shall be stayed, or in any way affected by reason of any informality in entering such judgments, or other entry required to be made in the docket, or for any other default or negligence of the justice or constable, by which neither party shall have been prejudiced.”

It will be thus seen that these transcripts are made evidence by law, and also that the Legislature (by wise forethought and timely precaution) has made provision against the probable blunders and inaccuracies of these inferior tribunals which adjudicate upon matters of lesser litigation.

But the transcript in this case is well enough, and although not punctuated, indicates with sufficient clearness that the justice had acquired jurisdiction, and proceeded in due course of law to judgment.

It would be indeed a grievous hardship if a plaintiff's rights could be defeated, merely because the justice who tries the cause was not conversant with the rules of punctuation. And no valid objection can be urged to the manner in which the justice has certified this transcript.

In Perryman vs. The State, 8 Mo., 208, the court holds that a Justice of the Peace in certifying transcripts from his docket, may embrace several judgments in one certificate, and it will not be necessary to certify each judgment separately.

The court ruled correctly in not permitting defendants to prove by parol that the constable had never served the summons upon them. It is not permitted to thus collaterally attack even the judgment of a justice of the peace.

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