Parry v. Walser

• Citation: 57 Mo. 169
• Parties: JOS. C. PARRY, Plaintiff in Error, v. G. H. WALSER, ADM'R OF ANDERSON S. JONES, Defendant in Error.
• Decision Date: 31 July 1874
• Court: United States State Supreme Court of Missouri

57 Mo. 169

JOS. C. PARRY, Plaintiff in Error,

v.G. H. WALSER, ADM'R OF ANDERSON S. JONES, Defendant in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Barton Circuit Court.

C. W. Brown & Bray, for Plaintiff in Error.

G. H. Walser, for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Barton Circuit Court by the plaintiff against Anderson S. Jones and James Rutherford, who were at the time living, but who, after the commencement of the suit both died, after which, their administrators were made parties defendant.

The action was brought to recover the amount of a judgment charged to have been rendered by one Benjamin L. Hayward, a justice of the peace in and for Lamar township in Barton County in the State of Missouri, in favor of Joseph W. Petty, and against said Jones and Rutherford, on the 26th day of January, 1861, and afterwards assigned by said Petty to the plaintiff. It was alleged in the petition that the docket entry of the judgment and all of the papers connected therewith had been lost or destroyed.

The defendants, by their answer, denied all of the allegations in the petition, except the allegations that the docket entry of the judgment and the papers in the case had been lost or destroyed.

When the case came on for hearing the parties waived a jury, and trial was commenced before the court. The plaintiff after introducing evidence tending to prove the rendition of the judgment by the justice, and the loss or destruction of the docket entry of the judgment, and of the papers connected therewith, offered to prove, by parol evidence, the recovery and rendition of the judgment and the terms and contents thereof. To this evidence the defendants objected, for the reason that no proof had been made that the docket of B. L. Hayward was either lost or destroyed.

The court sustained the objection and excluded all evidence offered in the cause in relation to said judgment, for the reason, that it had not been shown to the satisfaction of the court that the docket of the justice had been lost or destroyed.

The plaintiff then took a non-suit with leave to move to set the same aside, which motion was afterwards filed and overruled by the court and final judgment rendered against the plaintiff. The plaintiff, at the time, excepted to the several rulings of the court in excluding the evidence offered, and in overruling his motion to set aside the non-suit, and in rendering the final judgment in the cause, and has brought the case to this court by writ of error.

The only question raised by the record in this case, necessary to be considered by this court, is, as to the propriety of the action of the Common Pleas Court in excluding the evidence offered by the plaintiff, to prove the contents or terms of the judgment rendered by the justice.

The preliminary evidence introduced by the plaintiff to show the existence of the judgment, and its loss or destruction, was to the following effect: that on the 26th day of January, 1861, Benjamin L. Hayward was an acting justice of the peace in Lamar township in Barton County, State of Missouri; that on said day, Joseph Petty recovered in the court of said justice, a judgment against Anderson S. Jones and ...