42 Mo. 219 | Mo. | 1868
delivered the opinion of the court.
The material question in the present case regards the proper construction to be placed upon the statutes in respect to transcripts issued from the judgments of justices of the peace, and filed in the office of the clerk of the Circuit Court.
The action was ejectment, brought in the Livingston Circuit Gourt, and the defendant relied for defense on a purchase of the
From the record it appears that one Ashford Saxton, on the 26th day of May, 1860, recovered judgment 'against Carpenter, the plaintiff, before James May, a justice of the peace for Livingston county, for the sum of thirty - three dollars and twenty-five cents debt, and six dollars and seventy-five cents costs; that an execution was regularly issued on the judgment by the justice of the peace, directed to the constable, and by him returned “no property foundand that afterward, on the 13th day of June, 1862, a transcript of the judgment was filed in the office of the clerk of the Circuit Court, and recorded and entered upon the docket of judgments and decrees; and that on the 10th day of December, 1863, execution issued from the clerk’s office, by virtue of which the land was sold by the sheriff, under which sale the defendants claim the title. It is contended by the plaintiff’s counsel that, under the provisions of the statute, the execution was issued by the clerk without authority, and in express violation of law, and that the purchaser at the sale took no title in consequence thereof. And this opinion seems to have been adopted by both the Circuit and District Courts. To support this view, section 6, p. 951, R. C. 1855, is cited, which provides, in reference to executions issued on justices’ judgments, that neither the plaintiff nor his legal representatives shall, at any time after the expiration of three years from the rendition of a judgment by any justice of the peace, sue out an execution thereon, unless such judgment be revived in the manner directed in subsequent sections of the act. And it is insisted that this prohibition is absolute on all courts, and the filing of a transcript in the Circuit Court can make no difference as to prolonging the time.
By section 16, R. C. 1855, p. 961, provision is made for filing transcripts from justices’ courts in the office of the clerk of the Circuit Court, and section 17 declares that every such judgment, from the time of filing the transcript, shall have the same lien on the real estate of the defendant in the county as is given to
The judgment will be reversed and the cause remanded.