Rankin v. Perry

• Citation: 5 Mo. 501
• Parties: RANKIN, &c., v. PERRY, ADM'R.
• Decision Date: 30 September 1838
• Court: Missouri Supreme Court

5 Mo. 501

RANKIN, &c.,

v.PERRY, ADM'R.

Supreme Court of Missouri.

September Term, 1838.

P. COLE, for Appellee. There was error in the judgment of the County Court, and the Circuit Court, therefore, did not err in reversing the same, for the following reasons: 1. There was no affidavit or oath made or filed in the County Court, upon the exhibition of demand by Perry, as administrator, as required by law. 2. The judgment given against Perry, administrator, is a judgment against him personally, and not in his representative character. 3. The County Court had no legal power to render a judgment against Perry, administrator, for costs. As to jurisdiction, see Odle v. Clark, 2 Mo. R. 12; Jones v. Reed, 1 Johns. Cases, 20; 1 Mo. R. 751. As to judgment, see McLaughlin v. McDonald, 1 Mo. R. 684; and as to the power of the County Court to give judgment for costs, see Mo. Laws, titles Administrations, Costs, Judgment, and Decree.

J. S. BRICKEY, for Appellant. The Circuit Court erred in refusing to dismiss the writ of error and the cause, for the following reasons: 1. Because the writ of error in this case is unauthorized by law, and the party might have taken an appeal. 2. Because no writ of error lies in probate causes from the Circuit to the County Court. 3. Because the Circuit Court has no jurisdiction of the case. 8th sec. 5th art. of the Constitution; Matson v. Dickerson, 2 Mo. R. 340; Dig. 570, § 2; do. 63, § 1; do. 63, § 2.

MCGIRK, J.

Perry, as administrator of Ennis, presented a claim against Rankin & Honey, the representatives of Honey, deceased, for a demand due to his intestate from the intestate of Rankin & Honey. On the trial of the cause, the County Court gave judgment against Perry. He then took a writ of error from the Circuit Court; and when the same was brought there, he assigned for error: 1. That there is no legal judgment in the case. 2. That there is no affidavit filed in the case by the plaintiff, as the law requires. 3. That the proceedings are irregular, &c. The defendants joined in error, and the court reversed the judgment in the case, and remanded it to the County Court. Rankin & Honey appealed to this court.

Mr. Cole, of counsel for the defendant, Perry, has made a motion to dismiss the cause; because he alleges that the judgment of reversal of the Circuit Court is not such judgment that a writ of error on appeal will lie from. This court think this objection is not well founded. The 7th section of the 7th article of the act to regulate practice at law, Rev. Code, 470, says “every person aggrieved by any final judgment or decision of any Circuit Court, may appeal.” The law regarding a writ of error is the same. It is most clear the decision must be final on the point, and the cause must, by that decision, or some other one in the cause, be disposed of before the same can be in a condition to be brought to this court.

In this case the decision was, that the defendants' decision in the County Court be reversed. This decision destroyed the judgment which the defendants had in their favor; and if this judgment was erroneously reversed by the Circuit Court, the judgment reversing it should be reversed; then the effect will be to restore the judgment of the County Court. I am, then, of...