Sholar v. Smyth

• Decision Date: 30 June 1834
• Citation: Sholar v. Smyth, 3 Mo. 416 (Mo. 1834)
• Parties: SHOLAR v. SMYTH AND OTHERS.
• Court: Missouri Supreme Court

3 Mo. 416

SHOLAR

v.SMYTH AND OTHERS.

Supreme Court of Missouri.

June Term, 1834.

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY.

TOMPKINS, J.

Sholar brought his action under the statute concerning forcible entries and detainers before two justices of the peace of Washington county, and had judgment. Smyth and others, defendants under the 11th section of that act, by writ of certiorari, removed the proceedings had before the justices of the peace, into the Circuit Court of Washington county, where, by the judgment of that court, the judgment of the two justices was reversed and held for nought for irregularity apparent on the face of the proceedings; a writ of restitution was granted to the plaintiffs in certiorari, defendants before the justices, and the cause remanded to the said justices for further proceedings. The 11th section is in these words, “that no appeal shall be allowed from the judgment of the justices under this act; but the proceedings may be removed after jndgment, by certiorari, into the Circuit Court, and there set aside for irregularity.” When the cause came into the Circuit Court, the counsel for the defendants below assigned for error, that the justices had not allowed the defendants to put in issue, by plea, facts that might in law have barred the plaintiff from recovering in this action, and material testimony had been excluded from the jury, all which was saved in a bill of exceptions. It is evident from the slightest perusal, that the act is designed to provide for a decision on the right of possession, and thereby prevent breaches of the peace. The 17th section provides, that “no judgment under or by virtue of this act shall be a bar to any other action at law brought by either party, either to try the right of property or for intermediate damages.” Therefore in the 11th section above cited, it is expressly...