Brownfield v. Thompson

96 Mo. App. 340 | Mo. Ct. App. | 1902

BROADDUS, J.

On the twenty-first day of February, 1901, plaintiff brought suit by attachment against •defendant, Moses M. Thompson, a non-resident of the State, before J. R. Price, a justice of the peace in Union township, Holt county, Missouri, and on same day defendant Ramsay was summoned as garnishee. Defendant Ramsey answered, admitting that he had in his hands $700 in money belonging to said Thompson. After proof was made of plaintiff’s demand against said Thompson, judgment was rendered in plaintiff’s favor ■on said demand against said Thompson for $28.25 and costs of suit, and like judgment against defendant garnishee Ramsay. On April 22,1901, execution was issued against Ramsay as such garnishee for the amount of said judgment and costs. On the twenty-seventh day ■of said month Ramsay appeared and moved to quash said execution, which motion was overruled by the justice and from which action of the justice Ramsay appealed to the circuit court of the county where he renewed his said motion which the court sustained. It is from this action of the court that the plaintiff has appealed.

The contention is that the justice had no jurisdiction to entertain the motion, and, therefore, no jurisdiction could be conferred upon either the circuit court •or this court by appeal.

We find nothing in the statutes authorizing a justice of the peace to quash an execution issued from his court. In Enlow v. Newland, 22 Mo. App. 581, it was held that justices of the peace have only such powers .as are given them by statute. In Weeks v. Etter, 81 Mo. 375, it was held that a justice has no general power to set aside verdicts and can only set aside nonsuits when entered on account of the absence of the plaintiff. A justice’s court is not only a court of limited jurisdiction, but its powers are limited within its jurisdiction. It can only do such things where it has jurisdiction as the Legislature has provided it may. The manner of exercising its jurisdiction is limited by the same law that created it. ' Thus, as has been seen, it has no powers to set aside verdicts because there is no statute authorizing it to do so. A justice may set aside a nonsuit entered on account of the absence of the plaintiff because he is especially authorized by statute. "When he issues an execution, his power over it ceases. It is in the hands of the constable and must be served in the manner provided by law, unless the party in whose favor it was issued orders it to be returned. The power in a justice to control an execution once issued and in the hands of the constable for service, would be impolitic, for the reason that, as a rule, he is unlearned in the law and can not be expected to exercise that discretion and judgment which the judge of the courts of general jurisdiction are capable of. The Legislature has defined the jurisdiction of justices of the peace and has provided in a very careful and specific manner their duties and their mode of procedure. There is only one way of bringing a matter before a justice of the peace and that is pointed out, but we find no means by which a motion to quash an execution can be got before such justice. Silence in that respect, in our opinion, is in effect a prohibition. The power to quash an execution issued out of a circuit court is conferred by statute. Sec. 3223, R. S. 1899. If the Legislature deemed it necessary to confer such power in the circuit courts and omitted to confer the same power in justice’s courts, it is an argument strongly supporting the theory that it would be unwise to so confer that power in justices’ courts. We therefore hold that there is nothing in the statute nor in the policy of the law that would justify us in deciding that the justice had jurisdiction of said motion. And it follows that the circuit court and this court could not and did not obtain jurisdiction by appeal. The appeal is therefore' dismissed.

All concur.