Murray v. Laften

• Decision Date: 31 March 1852
• Citation: 15 Mo. 621
• Parties: MURRAY v. LAFTEN ET AL.
• Court: Missouri Supreme Court

15 Mo. 621

MURRAY

v.LAFTEN ET AL.

Supreme Court of Missouri.

March Term, 1852.

ERROR TO ST. LOUIS CIRCUIT COURT.

The plaintiff brought several actions of ejectment against the defendants, which were consolidated, and claimed the property in question, by virtue of a sheriff's deed conveying the same as the property of one John Miller. The executions on which it was sold, issued out of the clerk's office of the St. Louis Circuit Court, founded on transcripts of judgments and proceedings under them before a justice of the peace. The proceedings appeared to be regular, from the transcripts; but to show irregularity in them, the defendant offered the oral testimony of the justice. This testimony was objected to as incompetent for the purpose, by the plaintiff, but the Circuit Court overruled the objection and permitted the magistrate to be sworn; and he testified that certain papers produced by him were the original writs of execution issued by him, and it appearing that these were returnable in sixty, and not in ninety days as set forth in the transcript offered in evidence by the plaintiff, the court instructed the jury--1st. That the plaintiff could not recover. 2nd. That if the only executions issued by the justice were made returnable in sixty days, the subsequent proceedings were void. The plaintiff complains of the decision of the court admitting the testimony of the justice, and of the instructions of the court to the jury.

F. P. BLAIR, JR., for Plaintiff.

I. The court erred in admitting the testimony of Justice Wetmore, for the purpose of falsifying a record. A record of the superior court (as the transcript from the justice's court when filed in the Circuit Court as the basis of process out of that court had become) is the highest, and oral testimony is inadmissible to vary it.

II. The plaintiff insists, that the instructions given to the jury are erroneous, to the effect, that the executions issued by the magistrate being made returnable in sixty days instead of ninety, they were void, and that consequently the subsequent proceedings in the Circuit Court were void. This instruction was given on the idea, that the law laid down in Chouteau v. Stevens, 11 Mo. R. 384, was applicable to this case; but that case only declares, that an irregular execution issued by a magistrate was void, and if the plaintiff's title had emanated from the process of the magistrate, the case would be applicable; but it is otherwise. The plaintiff's title comes from process sued out of the Circuit Court, which, though irregularly issued, is not void, but only voidable. The transcript from the justice, when filed in the Circuit Court, becomes a judgment and record of that court and is put on a footing, in all respects, with the judgments rendered there. The process to enforce it is equally under the control of the court and the judge, and the executions issued out of the court might have been quashed on a supersedeas issued. Rev. Code, p. 659, §§ 17, 18. The plaintiff cites the following cases in which irregular executions have been held voidable only, and the titles acquired under them sustained. 1st, when the judgment was paid before the sale: Dean v. Connolly, 6 Barr, 239; Reed v. Austin, 9 Mo. R. 722. 2nd, when sales were made, not in accordance with notice required by law: Maddox v. Sullivan, 2 Peck, 89. 3rd, when sales have been made on dormant judgments: 7 Iredell, 387, State v. Morgan; 4 Dev. 497, Dawson v. Shepherd. 4th, when sales have been made under executions issued contrary to the express prohibitions of the statute: 4 Cranch, 328, 333, where the Supreme Court say, proper course was to quash the executions. See also 2 B. Monroe, 127; 10 Peters, 449. The propriety of requiring the defendant to take advantage of any irregularity in issuing the executions out of the Circuit Court, is further shown by observing that the statute only requires the preliminary executions to be issued by the magistrate and returned nulla bona by the constable, when the defendant resides in the county. Now as a motion to quash the execution in this case, on the ground that sixty days instead of ninety days was improperly inserted in the magistrate's executions, it might have been shown that the defendant was a non-resident of the county, and that plaintiff was entitled to have executions on that ground, whether the magistrate's executions were valid or not.M. L. GRAY, for Respondent. The executions issued by the justice of the peace, being on judgments over ninety dollars, returnable in sixty days were void. Laws of 1841, p. 101; 11 Mo. R. 382; 5 Wend. 275; 9 Wend. 338; 14 Vt. R. 491; 16 Vt. R. 393. No legal executions having been issued on the justice's judgments, the executions from the Circuit Court were without authority, void, and the sale and all proceedings under them null: Rev. Code 1835, p. 364; 3 Mo. R. 264; 4 Mo. R. 117; 7 Mo. R. 552. The statute expressly declares that no execution shall be issued by a clerk of the Circuit Court on a transcript of a justice's judgment, till an execution has been issued by the justice and returned nulla bona The fact, whether an execution has issued from the justice and been returned, was a proper and material inquiry, and a fact that the plaintiff was bound to establish to sustain the sale. To disprove this alleged fact the defendants introduced the original and only executions issued by the justice and identified them by the justice. This testimony was legal and the best possible evidence that could be offered. The defendants were not bound by the false transcripts that the plaintiff produced. The purchaser at the sheriff's sale must know at his peril that the proceedings are legal. But even the false transcripts of the executions filed in the clerk's office showed on their face that there had been no legal return of nulla bona by the constable below. The judgments before the justice were rendered on the 17th of February, 1844, and the executions bear date the same day. The transcripts of the pretended executions, with the pretended returns of nulla bona, were filed in the clerk's office on the 10th of May succeeding, seven days before the return day before the justice, and on the 11th of May, 1844, six days before the apparent return days of the justice's executions, the clerk issues executions to the sheriff. The return of nulla bona before the return day of an execution, is a void return. 1 Coke, 512; 7 Comyn's Dig. 285. The testimony, therefore, admitted by the court below was proper, and there is no error in the action of the court in this respect, nor in the instructions given by the court. For the same reasons there was no error in the judgment given, nor in the refusing of a new trial.

GAMBLE, J.

Judgments were recovered against Miller, the owner of the property in question, before a justice of the peace, and transcrips of the judgments, including executions thereon, and the constable's returns of nulla bona upon the executions were filed in the office of the clerk of the Circuit Court in May, 1844. Executions issued from the Circuit Court upon these judgments, and the property was sold and conveyed by the sheriff to the plaintiff. Upon the trial of the present action, the plaintiff gave in evidence the transcripts from the justice of the peace, the executions from the...