Jewett v. Weaver

• Citation: 10 Mo. 234
• Parties: JEWETT v. WEAVER, ADM'R OF HORN.
• Decision Date: 31 July 1846
• Court: United States State Supreme Court of Missouri

10 Mo. 234

JEWETT

v.WEAVER, ADM'R OF HORN.

Supreme Court of Missouri.

July Term, 1846.

ERROR TO GREENE CIRCUIT COURT.

RICHARDSON & OTTER, for Plaintiff. 1st. The County Court has jurisdiction. See Rev. St. 92. 2nd. The cause of action survives against the administrator under our statute. See Rev. St. 76. 3rd. The cause of action exhibited is sufficient.

HENDRICKS, for Defendant.

NAPTON, J.

This was a demand originally presented to the County Court of Greene county against the estate of Thomas Horn. The written statement which was filed in the County Court, set forth in substance the following facts as the foundation of the action: An execution was issued from the Greene Circuit Court, in which Jewett was the plaintiff, and one Payne defendant, which execution commanded the sheriff of that county to levy upon the goods and chattels, lands and tenements of said Payne, the sum specified therein, and in the event that property could not be found, to take the body of said Payne, &c. This execution was returned by Horn, the then sheriff, to whom it had been directed, with the statement that said Payne could not be found in Greene county. This return the plaintiff alleged to be false, and asserted that Payne, whilst the execution was in the hands of said Horn, during the life-time of said Horn, was openly and publicly in the county of Greene, and could have been arrested. By reason of this false return, the plaintiff claims from Horn's executor the amount of the execution.

The County Court refused to audit and allow this demand, for reasons which do not appear in the record. The case was removed by appeal to the Circuit Court, where the defendant, Weaver, moved the court to dismiss the cause for the following reasons: First, because the County Court had no jurisdiction of said case. Second, because the cause of action set forth by the plaintiff, died with the said Horn; and lastly, because the cause of action was not sufficiently set forth. This motion was sustained and the cause dismissed.

We presume the only question in this case which could be considered a debatable one, is the one arising out of the second objection urged in the defendant's motion to dismiss. This question is, whether the present action is one which died with the person, or would survive against the personal representative. This subject was fully considered by this court in the case of Higgins v. Breene, Adm'r of McNally, 9 Mo. R. 499; and it is unnecessary to repeat what was then said. If...