26 Mo. 308 | Mo. | 1858
delivered the opinion of the court.
The statute of limitations having been pleaded, it was error in the court to permit the verbal promise of Spillman to take the case out of the statute. Our law requires such promises, in order to be available, to be in writing. (R. C. 1845, p. 720, sec. 13.)
In relation to the Kentucky judgment, it is objected that the service of the writ of summons was insufficient, and that there is therefore no record of a judgment which can be enforced here. The return is “ executed in full.” The record contains this further statement: “ This day came the plaintiff by his attorney, and the defendants being duly summoned and not appealing,” &c. In the case of Wilson v. Jackson, 10 Mo. 331, such a return was held prima facie evidence of service where it was made upon a capias in Virginia. That the Kentucky court considered the return evidence of service is manifest from the record which recites, as a foundation of the judgment by default, that the defendants were duly summoned. In this case there is no plea that the party was not served with the writ, nor any evidence submitted tending to establish such a defence. The objection therefore to the form of the return was we think properly disregarded by the circuit court.
Wo do not consider the levy made upon Spillman’s property as an extinguishment of the judgment. The property was returned to the defendant by the plaintiff’s order, as it
The judgment will be reversed and the cause remanded;
