Ruby v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 28 February 1867
• Parties: WILLIAM C. RUBY, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

39 Mo. 480

WILLIAM C. RUBY, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

February Term, 1867.

Appeal from Macon Circuit Court.

Carr, and Hall & Oliver, for appellant.

The appellant makes the following points in this record:

There is a great difference between the case of an execution on a transcript without a strict compliance with all the pre-requisites of the statute, and a sale and purchase under such execution by an innocent purchaser for value, and the case of an execution issued on such transcript without a strict compliance with all the pre-requisites of the statute in such case made and provided, and a motion made by the defendant in such execution at the return term to quash such execution for want of such compliance. In the latter case, a motion to quash will always be sustained. In the former case, the sale on grounds of public policy will be sustained, at least where the validity of such sales is questioned in a collateral proceeding.

Now here is a direct proceeding to quash the execution issued in this case. The clerk was only authorized to issue an execution “when an execution shall have been issued by the justice,” and returned “that the defendant had no goods or chattels whereof to levy the same”--R. C. 1855, p. 961-2, § 17. The clerk issued such execution without any authority of law. He had no evidence in his office that a legal and valid execution had been issued by the justice by whom the judgment had been rendered, and returned that “the defendant had no goods or chattels whereof to levy the same,” so as to authorize him to issue such execution. This was a condition precedent; it was not complied with. The justice is not authorized to determine whether the execution issued is a legal and valid execution. All he is authorized to do is to certify a copy of the execution and return thereon to the clerk, and then the clerk can determine whether such execution and return are in conformity with the law. If they are, then, and not till then, is he authorized to issue an execution on such transcript--Carr v. Youse, 39 Mo. 346; Coonce v. Munday, 3 Mo. 264; Burk v. Curry, 4 Mo. 116; R. C. 1855, p. 727, § 22.

Prewitt, for respondent.

I. The law only requires an execution from the justice to issue before one can be issued by the Circuit Court, if the defendant is a resident of the county.

II. The record of the justice filed in the circuit clerk's office, and recorded in the transcript book, shows that the parties appeared and had a trial, and judgment for plaintiff, and execution thereon issued to the township in which suit was brought, and in which defendant resides, if it resides in the county, returnable in sixty days, and returned “no property found.” Nothing more can be required--25 Mo. 334; R. C. 1855, p. 961.WAGNER, Judge, delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Macon county, overruling a motion filed by the appellant to quash an execution issued by the circuit clerk of said county in favor of the respondent, and against the appellant. The execution was issued on a transcript of a judgment rendered before a justice of the peace, and only filed in the office of the clerk of the Circuit Court. The material grounds relied on to invalidate the execution and reverse the judgment of the Circuit Court are, that there was no evidence on file in the court, or with the clerk thereof to show that an execution had been issued by the justice, directed to the constable of the township to which the defendant...