Jester v. Spurgeon

• Citation: 27 Mo.App. 477
• Parties: EZRA T. JESTER, Appellant, v. THOMAS SPURGEON, Respondent.
• Decision Date: 25 October 1887
• Court: Court of Appeal of Missouri (US)

27 Mo.App. 477

EZRA T. JESTER, Appellant, v. THOMAS SPURGEON, Respondent.

Court of Appeals of Missouri, St. Louis.

October 25, 1887

APPEAL from the Clarke County Circuit Court, BEN. E. TURNER, Judge.

Reversed and remanded.

MATLOCK HILLER & HOWARD, for the appellant: The sale was void because made by one who was not even a de-facto officer. Douglass v. Wickwire, 19 Conn. 489; Facey v. Fuller, 13 Mich. 527; Bean v Thompson, 19 N.H. 290; Commonwealth v. McComb, 56 Pa.St. 436. It does not appear that the justice acquired jurisdiction by service or by appearance. The State v. Metzger, 26 Mo. 65; Bersch v Schneider, 27 Mo. 101.

BERKHEIMER & WHITESIDE, for the respondent: The constable was a de-facto officer. Plymouth v. Painter, 44 Am. Dec. 574; County Court v. Sparks, 10 Mo. 80; O'Bryan v. Kerwin, Cro. Jac. 562; Harris v. Jays, Cro. E. 699; Cocke v. Hulsey, 16 Pet. 85. The summons was properly introduced to show jurisdiction. Freeman on Judg., sect. 518; Abbott's Tr. Evid., sect. 540.

OPINION

ROMBAUER J.

This action is replevin. The property in controversy is a mule formerly owned by the plaintiff, and now claimed by the defendant, as purchaser at an execution sale. Judgment was rendered in the trial court for the defendant for possession of the property, or its ascertained value, and fifty dollars damages. The ascertained value of the animal, and the damages for its detention, as found by the court, are supported by the plaintiff's own testimony; and his complaint that the damages are excessive may be laid out of view.

The only substantial point for consideration is, whether the execution sale was legally sufficient to divest the plaintiff's title.

The plaintiff challenges the validity of the sale on the two grounds, that the defendant has failed to show a valid judgment against him, and that the person to whom the writ of execution was directed, and who sold the mule in controversy, purporting to act by authority of such execution, to the defendant, was neither an officer de jure nor de facto.

It appeared in evidence that judgment by default was rendered by a justice of the peace against the plaintiff, in an action within the jurisdiction of the justice, the plaintiff not appearing. The justice's docket entry of this judgment was informal in failing to show that the plaintiff (who was the defendant in that action) was served with process. To remedy this defect the defendant introduced the summons, with the return of one F. T. Snively, purporting to act as constable, which evidence tended to show that the plaintiff was duly served. The court thereupon admitted the judgment entry in evidence.

The plaintiff contends that this ruling was error, and that the omission in the docket entry of the jurisdictional fact of the service can not be cured by the production of the summons showing due service, and further, that the summons fails to show that it was issued in the case wherein the judgment was rendered.

This contention is not tenable. The record recites that the defendant " introduced the summons in the case of David McKee v. Ezra T. Jester and A. K. Loomis, " being the case in question, the names of the parties and the amount sued for is the same, and the justice identified the paper as the summons issued by him. The question was not of amending a written return, by oral evidence, aliunde, which can not be done, ( Madison Co. Bank v. Suman's Adm'r, 79 Mo. 527), but of identifying a paper as part of a record, and aiding the recital of...