Maids v. Watson

• Decision Date: 31 October 1850
• Citation: 13 Mo. 544
• Parties: JAMES MAIDS v. JOHN H. WATSON.
• Court: Missouri Supreme Court

13 Mo. 544

JAMES MAIDS

v.JOHN H. WATSON.

Supreme Court of Missouri.

October Term, 1850.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

N. & S. A. HOLMES, for Plaintiff. 1st. Is the judgment required by the replevin act, in case the plaintiff fails to prosecute his suit with effect and without delay, a final judgment? It is insisted that it is, and made so by the very terms of the act. Rev. Stat. 1845, ch. 45, §§ 8, 9; Smith v. Winston, 10 Mo. R. 299, 301. 2nd. Our statute is almost precisely like that of the 17th Car. II, ch. 7, which, in case of non-suit after avowery made for rent in arrear, makes the judgment final. 6 Bac. Abr. 85; 18 Vin. Abr. 596, 597. 3rd. A justice of the peace has authority to set aside a verdict and grant a new trial only in certain excepted cases, of which exceptions this is not one. Cason v. Tate et al., 8 Mo. R. 45.

BIRCH, J.

On the 30th of August, 1847, a writ of replevin, to recover the possession of various articles of furniture, alleged to be wrongfully detained by the plaintiff in error, was sued out by one Wimer, before the law commissioner of St. Louis county. The writ was made returnable on the 15th of September following, but the trial was continued, on Wimer's motion, to the 22nd, on which day (the plaintiff not appearing), the commissioner proceeded to hear the testimony of the defendant, and to assess the value of the property and damages, and rendered judgment against the plaintiff and his security accordingly. On the 26th September the plaintiff appeared and moved to set aside the judgment thus rendered, and the motion being sustained, the case was again set for trial on the 4th October. On the 3rd October the defendant appeared and moved to vacate the order granting a new trial, and for execution upon the original judgment. This motion having been overruled, on the 8th of October the plaintiff in error filed in the St. Louis Court of Common Pleas his petition for a mandamus to compel the commissioner to vacate his said order and issue execution on the judgment; to which petition, upon the return of the alternative writ, the commissioner filed his answer, substantially admitting the facts stated in the petition, but insisted and relied that the original judgment was interlocutory, and he therefore had the power to set it aside. To this answer there was a demurrer, which being overruled, the case comes here by writ of error.

By the first section of the supplemental act respecting this officer (approved February 11, 1847), he has a concurrent jurisdiction with justices of the peace in reference to “all actions and proceedings” to which jurisdiction was confided to them in the second and third sections of the first article of the Justices' law, and was to “receive the same fees, and be subject to the same rules and regulations which apply to and regulate proceedings in justices' courts.” The present,...