43 Mo. 28 | Mo. | 1868
delivered the opinion of the c'ourt.
This case seems to be precisely similar in its facts to the case between the same parties determined at the October term, 1868, of this court (39 Mo. 346). It seems, upon a careful examination of the points presented by the appellant’s brief, that the second point decided by this court in the case referred to was erroneous, and we are now asked to review that decision.
The counsel seems to be under a misapprehension in relation to what was said by the judge in delivering the opinion in that case. It is true that the question of lien does not arise in the case at all. So far as that case was concerned, it might have been sufficient to have said that the filing of the transcript in the office of the clerk of the Circuit Court was, by the act establishing the Hannibal Court of Common Pleas, made a condition precedent to the authority of the latter court to issue an execution thereon. The reason why the legislature had inserted such a provision in the act was because it was necessary to impart notice to all persons, since it operated as a lien upon real estate from the time of filing. Hence, it was stated by way of argument that, without a compliance with that requirement of the act, there was no authority for issuing the execution, and it was therefore null and void. We can find nothing in the argument of counsel or the authorities referred to which will authorize a different conclusion from that reached in the former case.
Without restating the reasons upon which that decision rests, it will simply be necessary to say that the judgment of the court below will be affirmed.
