State ex rel. LaLley v. Carroll

• Decision Date: 22 June 1880
• Citation: 9 Mo.App. 275
• Parties: STATE OF MISSOURI, TO THE USE OF M. M. LALLEY, Respondent, v. JAMES CARROLL ET AL., Appellants.
• Court: Missouri Court of Appeals

9 Mo.App. 275

STATE OF MISSOURI, TO THE USE OF M. M. LALLEY, Respondent,

v.JAMES CARROLL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 22, 1880.

1. A defective statement of a cause of action is cured by verdict.

2. A justice's transcript of a docket-entry of judgment is evidence of the rendition of a judgment by him.

3. In the absence of evidence, it will be presumed that the justice who rendered the judgment was the proper custodian of the docket, and the proper person to certify the transcript.

4. Where a fact necessary to a recovery is proved by uncontradicted documentary evidence, a refusal to instruct that unless it was proved there could be no recovery, is not ground for a reversal.

5. Where the constable summons one as garnishee on execution, he is bound o notify the execution debtor of his exemption rights.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

LUCIEN EATON and L. J. SMITH, for the appellants.

DAVID MURPHY and A. W. MEAD, for the respondent.

BAKEWELL, J., delivered the opinion of the court on a rehearing.

This is an action against a constable and the sureties on his official bond. There was judgment against defendants, and execution was ordered for the amount claimed. It appears from the evidence that Reed and Green recovered judgment before a justice against Lalley, for whose use this action is brought. Maloney was then, at the instance of Reed and Green, summoned as garnishee of Lalley, on execution issued on that judgment, and such proceedings were had that Reed and Green recovered judgment against the garnishee. On this judgment in favor of Reed and Green and against Maloney as garnishee of the execution defendant, Lalley, an execution issued against Maloney, which was placed in the hands of Carroll, as constable. On this execution the money was made, and by Carroll paid to Reed and Green, the execution plaintiffs. After the judgment in the garnishment proceeding had been rendered against Maloney, Lalley claimed the indebtedness of Maloney to him as exempt from execution; but the constable disregarded the claim, and paid over to Reed and Green the amount collected by him on their execution against Maloney, garnishee of Lalley. There was evidence that Lalley was the head of a family.

The petition was carelessly drawn, and was in more than one respect defective. The answer was a general denial. Defendants, on the trial, objected to the introduction of any evidence, on the ground that the petition showed no cause of action, and specifically because it contained no averment of any judgment. The objection was overruled. The prayer of the petition was that the plaintiff recover the amount to which he claimed he was damaged by the breach alleged. Plaintiff was allowed to amend in this respect during the trial, and in granting this permission there was no error. No offer was made to amend in other respects. The petition alleged the issuing of an execution against Lalley, and also the issuing of an execution against the garnishee; but there was no allegation of any judgments on which these executions were issued. The cause of action was defectively stated. But if these facts were proved on the trial, and there was no question of surprise, we think that these defects were cured by verdict, and that the trial court committed no error in overruling the motion in arrest, so far as it was founded upon the insufficiency of the petition.

It is claimed by appellants that there was no proof of these judgments. The evidence offered, and admitted against the objection of defendants, was transcripts of the docket-entries of the justice rendering these judgments, certified by the justice. Copies of proceedings before justices, certified by the justice before whom they were had, or by him in whose lawful custody they are, are evidence of such proceedings. Rev. Stats., sect. 2323. The law requires every justice to keep a docket, in which he shall enter, among other things, the judgment and the time of entering it. Rev. Stats., sect. 2844. And the docket of a justice is evidence of such entries as the law requires to be made. 1 Mo. 484; 8 Mo. 159, 512. The justice who certified the transcript of the docket-entries was the justice before whom the cause was tried. We think it must be presumed, in the absence of proof to the contrary, that he was the proper custodian of the docket. Linderman v. Edson, 25 Mo. 109. The certificate seems to be in due form, and by the proper officer. The objection that the transcripts of these docket-entries were incompetent, not proved, nor certified by any officer, was, therefore, properly overruled.

But, not only was there no allegation of a judgment against the garnishee, but nothing was said as to the necessity of such a judgment in the instructions.

The instruction given for plaintiff was the only instruction in the case, and was as follows:--

“If the jury find from the evidence that Lalley, at the date of service of execution by defen...