Lackey v. Lubke

• Decision Date: 31 July 1865
• Citation: 36 Mo. 115
• Parties: HUGH LACKEY, Plaintiff in Error, v. J. C. LUBKE, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 115

HUGH LACKEY, Plaintiff in Error,

v.J. C. LUBKE, Defendant in Error.

Supreme Court of Missouri.

July Term, 1865.

Error to Crawford Circuit Court.

Ewing & Muir, for plaintiff in error.

I. The continuance should have been granted. The application and affidavit in support of it shows reasonable diligence, especially when the condition of the country is considered.

II. The depositions of Klunk and Hunt were improperly excluded.

III. The sheriff's deed was improperly excluded. (Act on Execut. §§ 49-54; R. C. 1845, pp. 484-5; Hardy v. Heard et al., 15 Ark. 185-7; Rev. Stat. Ark., p. 382, § 54.) It contained all the recitals required by aw. In Tanner v. Stine (18 Mo. 580), cited by defendant's counsel, the deed omitted a recital of the court, the term, and the year. The recital in the deed in the case at bar, as to the notice (which is the only supposed defect noticed by the opposite counsel), is full. The statement in the deed that he, the sheriff, gave twenty days' notice, &c., by handbills, ex vi termini import that he signed the handbills.

The deed being evidence of the facts therein recited, plaintiff was not bound to show otherwise a judgment, execution, advertisement, &c., and it should have been admitted. Any question, therefore, as to the regularity of the issue, return, &c., of the execution before the deed was admitted, defendants were precluded from raising in the court below, and cannot do so here.

IV. It is unnecessary, in this view, for the plaintiff in error, to show any authority for issuing an execution from the Law Commissioner's Court to the sheriff of Jefferson county. The statute, however, gives express authority for it--R. C. 1845, Execut., p. 476, § 8; R. C. 1855, p. 737, § 8--and there is no repugnancy between these provisions and that provision of the act creating the Law Commissioner's Court directing that its process shall be executed by the sheriff or marshal; which only means (construing the two acts together) that the process to be executed in St. Louis county shall be executed by the sheriff or marshal.

V. It is further maintained--though not necessary as the case is now presented, as we conceive--that the supposed irregularities and errors, if they really existed, are not such as could have availed the defendants, in a collateral proceeding of this kind for any purpose. (Landes v. Perkins, 12 Mo. 238; Draper v. Bryson, 17 Mo. 71; Reed v. Austin, 9 Mo. 713; 16 Mo. 68.)

VI. The fact that depositions offered in evidence may contain incompetent and illegal evidence, will not justify the rejection of them altogether. The court should point out and exclude the inadmissible portions. (Hamilton v. Scull, 25 Mo. 165.)

A motion to exclude depositions must specify the grounds of objection. (Chapman v. Sprier, 10 Mo. 689; Bank Mo. v. Merchants' Bank, 0 Mo. 123; 15 Mo. 244; 13 Mo. 203.)

I. Z. Smith, for defendant in error.

An execution from the Law Commissioner's Court has no validity if issued to Jefferson county. The Laws of 1853, p. 95, provide that “all process issuing from the Law Commissioner's Court shall be directed to the marshal of St. Louis county, and executed and returned by him.”

The court is limited in its jurisdiction as to amount, and the execution of ““all” its process is limited to one officer of one county. Its jurisdiction on notes is just the same as that of justices of the peace; and on accounts, a little higher; and it was the intention of the Legislature to confine the operation of its process to the same territorial extent as those issuing from justices of the peace.

This court being one of limited and not general jurisdiction, all acts concerning its jurisdiction, and concerning the execution of its process, must be construed strictly. The Legislature, in creating this tribunal and in defining its powers did not intend to give it any power beyond the bounds of the county.

The several acts establishing the St. Louis Court of Common Pleas (R. C. 1855, p. 1587), the St. Louis Criminal Court ( id. p. 1589), and the St. Louis Land Court ( id. p. 1592), contain no such language.

But supposing there had been a valid judgment, and the court could have given power to the sheriff of Jefferson county to execute the execution or process, the execution in this case would have had no vitality. The Laws of 1853, pp. 94 & 95, provide that this court shall have six terms a year--April, June, August, October, December and February.

The general law provides that executions shall be made returnable to the next succeeding term, unless otherwise ordered by the plaintiff, when they be made returnable to the second term. The execution offered in evidence by plaintiff was issued June 12, 1854, and made returnable on the first Monday of August, 1854. After the first Monday of August, 1854, this execution, if it ever had any validity at all, was dead; after the first Monday of October it was undoubtedly dead, without a venditioni exponas, which should be recited in the deed. If the general law concerning executions is correctly applied to executions issuing from the Law Commissioner's Court, then there was no validity to the execution in question after the first Monday of August, 1854.

But another reason may be urged against the validity of the execution. The law of 1851 (p. 243) provides that all executions issuing out of the Law Commissioner's Court shall be dated the day they are issued, and returnable in sixty days. This law has never been repealed. It was a special law, applied to a single object, and cannot be repealed by any general law, unless by express terms. This execution issued on the 12th day of June, and should have been returnable on the 11th day of August. Now, if the first Monday of August was the 7th day of the month, it would make 56 days; if the first of the month, it would be 50 days. It was therefore not in accordance with the law, and therefore had no effect.

Plaintiff also complains that the sheriff's deed to him was excluded; but there are good reasons for its exclusion:

I. All of the reasons for the exclusion of the execution and return are reasons for excluding the deed. The deed was based upon the execution; if that was worthless, the deed must be.

II. Admitting, 1st, that there was a judgment; 2d, that the court could issue its process to Jefferson county; 3d, that the execution was made returnable at the proper time; and 4th, that it had validity and life after the return day-- then it carried no title, for the reason that it is defective in its recitals.

The Laws of 1845 (R. C. 1845, p. 484) provide for the recitals in a sheriff's deed, and (p. 483) what the advertisement shall contain.

LOVELACE, Judge, delivered the opinion of the court.

When this case was called for trial, the plaintiff filed an affidavit asking for a continuance on the ground of the absence of material witnesses and on account of the absence of counsel; he gives the names of the witnesses and their place of residence, showing that they reside over forty miles from the place of trial, and sets out what he expects to prove by the witnesses, and that he has made some exertion to get their depositions; that he had given notice to take their depositions on the 17th day of April, (the trial came on the 24th,) and that he had notified the witnesses to appear at the time and place designated in the notice, and that the witnesses failed to appear; that he believed he could procure the evidence by the next term of the court, if the continuance were granted. The court overruled the motion for a continuance and the defendant excepted, and the trial proceeded, and the plaintiff offered certain evidence (which will be more fully alluded to hereafter), which was excluded by the court, and the plaintiff took a non-suit with leave to move to set the same aside.

The plaintiff then filed a motion to set aside the non-suit, for the reasons the court refused to grant a continuance, and had improperly excluded evidence offered by the plaintiff; and his motion to set aside the non-suit being overruled, he excepted, and now brings the case here by writ of error.

There was no error in refusing the motion for a continuance; such motions are very much within the discretion of the nisi prius courts; they understand the facts much better than they can be understood here. Besides, the record shows that this suit was commenced in 1857, and was not disposed of until April 1863; it had been continued several times at the application of the plaintiff, and no good reason is shown why the depositions of these witnesses were not taken sooner. After the application for a continuance was overruled, the trial proceeded.

To show the plaintiff's right to maintain the action and have the defendant's deeds set aside, he offered in evidence an execution issued by the Law Commissioners of St. Louis, dated the 12th day of June, 1854, and directed to the sheriff of the county of Jefferson, reciting that Hugh Lackey, on the 21st day of April, in the year of our Lord one thousand eight hundred and fifty-three, at the Law Commissioner's Court of St. Louis county, recovered against John Schrieber...