Webb v. Garner

• Decision Date: 31 May 1835
• Citation: 4 Mo. 10
• Court: Missouri Supreme Court
• Parties: WEBB v. GARNER & TRIGG.

4 Mo. 10

WEBB

v.GARNER & TRIGG.

Supreme Court of Missouri.

May Term, 1835.

ERROR FROM THE HOWARD CIRCUIT COURT.

WASH, J.

This was an action of debt, instituted by Webb against Garner & Trigg upon a Kentucky record. The declaration contains three counts. The first count, after setting out the recovery of a judgment in the Clark Circuit Court in the State of Kentucky by the plaintiff Webb against Garner; the suing out of execution upon that judgment and taking of the body of Garner in execution and delivering of it to the jailor of the proper county; alleges that Garner while so in custody together with Trigg as his security, executed a replevin bond conditioned for the payment to Webb of the amount of the judgment recovered against Garner, with the costs, &c., within one year from the date; that this replevin bond was delivered to the jailor who thereupon discharged Garner from custody and returned the bond with a certificate of his proceedings aforesaid into the office of the clerk of the Clark Circuit Court; and averred “that by the laws of the said State of Kentucky in force at the time of giving the judgment aforesaid and ever since has been, viz; at the April term of the Clark Circuit Court, 1820, and at the time of the execution and return of the aforesaid replevin bond so executed by said Garner and Trigg as aforesaid the same upon the execution and return to the clerk's office as aforesaid, became and was a record of the said Circuit Court of Clark county of the said State of Kentucky, and then and there had the force and effect of a judgment of the said Circuit Court of Clark county in favor of the said plaintiff against the said Garner & Trigg; and as such by the laws of the said State was compelled to be kept in said clerk's office of the said Clark county, and therefore, the said plaintiff cannot make profert thereof,” &c.

The second count of the declaration is substantially the same as the first, making profert of a copy, &c.

The third count is substantially the same as the two first, with an additional averment that a scire facias upon the replevin bond was sued out of the Clark Circuit Court, and judgment obtained thereon for execution against Garner & Trigg for the amount of the former recovery against Garner and costs, and for the costs of the proceedings on the scire facias, &c.

The defendant pleaded to each count separately nul tiel record of the original recovery, non est factum of the replevin bond, and nul tiel record of the replevin bond and return in manner and form as alleged:--He also pleaded to the whole declaration nul tiel record of the original recovery and of the replevin bond and return in manner and form, &c., with an averment of the identity of the recoveries, replevin bond and returns mentioned in the several counts, &c. And to the third count the defendant pleaded a separate plea that the defendants, during all the time of the pendency of the proceedings upon the scire facias, were citizens and inhabitants of the State of Missouri and not of the State of Kentucky, that, they were not in Kentucky during the pendency thereof and had no notice of the scire facias, and did not appear thereto, &c.

Upon the motion of the plaintiff's counsel the pleas of non est factum were stricken out by the Circuit Court, on the ground that the same had not been verified by the oath of the party, &c. Issues were taken upon the other pleas and the trial of them submitted to the court sitting as a jury. In support of his case the plaintiff read to the court a transcript of the record of the original judgment recovered in the Clark Circuit Court, against Garner, and of the proceedings had in the execution of that judgment down to the taking and return of the replevin bond into the Clark Circuit Court, as set forth in the declaration; and also a transcript of the record of the proceedings had upon the scire facias; together with an authenticated copy of the Kentucky law regulating proceedings upon executions, replevin bonds, &c. The defendant then proved the facts stated in his special plea to the third count of the declaration, contesting the validity of the judgment upon the scire facias for want of jurisdiction over the defendants, &c. Upon this state of facts, the defendants moved the court (as by way of asking instructions to a jury) to declare that upon the evidence given the plaintiff could not recover. It was accordingly so ruled by the court. The plaintiff thereupon suffered a non-suit and afterwards moved to set it aside for misdirection, which motion was overruled and judgment given for the defendants, to reverse which the plaintiff now prosecutes his writ of...