Atwood v. Reyburn

5 Mo. 533 | Mo. | 1839

Tompkins, Judge,

delivered the opinion of the court.

Reyburn sued Atwood and Hudspeth before a justice ■of the peace, where he had judgment, and to reverse that judgment, Atwood appealed to the circuit court, for the summons was served on Atwood alone. In the circuit court, Rey burn again had judgment, and to reverse that judgment, Atwood appeals to this court. One objection taken is, that the plaintiff below proceeded against Atwood alone. By our statute all contracts, which, by the common law are joint only, shall be construed to be joint and several; but the bond sued on is joint and several. It does not appear that Hudspeth ever was before the justice. Atwood alone appealed; and before the circuit court the trial is proceeded in without regarding any imperfection, error or defect in the proceedings before the justice — see sec. 8, of the act establishing justices’ courts, p. 370, of the Digest of 1835. The proper parties, then, were before the circuit court, and even if any error had been committed before the justice, the statute cures it; but it does not appear that any was committed. It is further objected, that the summons was not served by any authorized officer. The person who signs his name to the return on the summons, signs with the addi-tion of “D. C.,” which I suppose means Deputy Consta-ble. It ought certainly to have been signed by the de-*n name principal, but Atwood appeared before the justice and appealed to the circuit court; he again appeared and defended in that court. It issome-wfiaj; curious that after two. appearances he should com-plain ot defective return of the service of a summons, when he himself, by his obeying the summons, has twice testimony to the correctness of the service itself, Several other points are made, but there being no bill of exceptions, it cannot be said that those points are well or ^ made, as they are not. made on matter appearing on the record proper. The judgment of the circuit court ought, in my opinion, to be affirmed, and such being, Judge Napton’s opinion, it is affirmed.

Af . the dnmftemirt,0 anv defect, error the justice, is red by the 8th sec. of the 8th art. of justices’ courts, The service of a * should be in the name of his prin-fendant^b^a pearfngand defending the ac-defecTfi^th/ser vice of the summons,