Davis v. Wood, 7 Mo. 162

Davis v. Wood

7 Mo. 162 | Mo. | 1841

Opinion of the Court by

Scott, Judge.

The plaintiff brought an action of trespass quare clausum fregit, against the defendant for breaking and entering his close, and taking away his goods. The defendant pleaded not guilty and justification, alleging that he acted as agent of one Thomas Duncan, who had obtained two judgments against one Harlow, on which executions were issued and delivered to the constable. That the said Harlow had goods locked up in the house in the declaration mentioned, and that the plaintiff was requested to open the door of the house, that the executions might be levied, which he refused to do; and that therefore the .said defendant by the commandment, and in aid and assistance of the constable, opened the door of the house, and thereupon the constable entered and seized the goods.

It appears from the evidence preserved in the cause, that, the defendant, as agent for Thos. Duncan, obtained two judgments and executions against one Harlow. Harlow was a wheelwright. A short time before the levy of the executions, he went to the plaintiffs in the night, and told them he was indebted to them, and that he was about to leave the *164neighborhood, that he would deliver them the key of his shop, that they might have the property left in it to pay themselves, and the key was delivered. Harlow left the neighborhood that night clandestinely, and has not been since heard of. He carried on his trade until he absconded. The goods were locked up in the shop he had occupied and consisted mostly of the implements of his trade, That shortly after Harlow absconded, the defendant, with the constable, came to the plaintiffs and demanded of them the key of Plarlow’s shop, in order that he might get the goods in it to satisfy the executions, The plaintiffs refused to deliver the key, alleging that the house was in their possession, and that they owned the goods, having purchased them of Harlow. The constable then declined breaking open the door, but told the defendant if he would open the door, he would levy on the goods found in the house. The defendant then forcibly raised the door off the hinges, and then the constable entered, and seized the property and sold it. Upon the trial, the plaintiffs submitted to a nonsuit, and after-wards moved to set it aside for the misdirection of the judge, and because improper evidence was admitted. The judgment offered in evidence, after stating the names of the parties, and the proceedings on the summons, runs thus, “the defendant appeared and acknowledged that the above is just on the day of trial ; also, 81£ cents for justice’s costs. Given under my hand, &c.” The plaintiff’s counsel contends that the above is not such a confession as is required by the statute. The act concerning justices’ courts, article second, sec,''on ^our> saYs : may b0 instituted before a justice, either by the voluntary appearance and agreement of the parties, or by process. The second section of the sixth ar-tide, prescribing the mode of taking confessions of iudg-ments, relates to coniessions taken where there is no process, In case there was process, and the party appeared on the day of trial, and acknowledged the justice of the demand. If he had appeared and said nothing, or had refused to appear, the demand being liquidated, judgment would have been rendered against him. An express acknowledgment of the justice of the debt must have as much weight as a *165refusal to answer it. It is also objected that there was no judgment entered on the confession. This court in the of Rutherford v. Winn, 3d vol. Mo. Reps. says, It will give the effect of a judgment to the verdict of a jury, so soon as it is entered on the docket of the justice. This principle is applicable.to the question under consideration. The sel for the plaintiffs also objected to the admission of the executions in evidence, because they did not run in the name of the State. It may well be questioned whether 1 , , I , , ,, , clause which directs that writs and process shall run m name of the State, as it also requires all writs to be tested .by the clerk, is not applicable alone to writs issued from the higher courts and courts having a clerk. But however this may be, the statute concerning writs directs that those nating irom justices’ courts shall run m the name ol the State. In our government, jurisdiction is conferred by constitution, and on the superior and inferior courts, and writs are only part of the machinery employed by courts for the exercise of the jurisdiction with which they are . ... . . . vested. It is not perceived how a writ wanting a tional requisite is more defective than a writ wanting a statutory one. The constitution as well as the statute is merely directory, and neilher tho one nor the other expressly makes void a writ not in conformity to its provisions ; and if it be , . . said the justice is sworn to support the constitution, so too he is sworn to observe the laws prescribed for the government of his official conduct. If the court has jurisdiction of the subject matter, any irregularity or error in the process will not make the officer, nor those acting under him, trespassers.

The 2d sec. thelactrreia.f ting to justi-(R. <c.U1i835, p. 382,) pre-manner of ta-sbns of judg" ments,relates t°kenfewhore therc is no process of tho consti-the'Tóth sec. V10 2dart-of the act ro-to jus-ticos courts, all writs and nuTintho111 ofJ_ho souri,’ are ther express, with its pro-Xfiho pearatuíd answers to the defcct’in^the writ> in t]?¡? respect, will bo cured.— It. 537 ; Fow-4 Mo. r 2™ Lin*® y. Lit-£27. Ovcrrul-

Notwitstanding the error, it is a justification. Miller Brown, 3d vol. Mo. Rep. 127. The judge on the trial instructed the jury, that if they believed from, the evidence, that the property was Harlow’s, and that it was in his possession whilst the execution was in the hands of the officer unsatisfied, then the execution was a lien upon the property, and Harlow could not defeat the claim of the plaintiff in the execution by a sale of the same. ’That the implements of trade and necessary tools of any mechanic whilst carrying *166°n ^'s tra^e> are exemPl from execution, but if a mechanic conceives the design of absconding, and ceases the prosecution of his trade, the moment he leaves his trade his tools and implements become subject to the lien of an unsatisfied execution of an officer. The jury was farther directed that ^bey must believe from the evidence, that the possession of the house was in the plaintiffs, to enable them to recover. Without determining whether an execution in the hands of a constable is a lien on the property of the defendant in the writ, before an actual levy of the same, it is the opinion of court, that the last instruction to the jury was correct; and from the evidence preserved in the bill of exceptions, it not appear that the plaintiffs had possession of the house, the forcible breaking and entering of which they com- ° ° J plain. The delivery of the key of the house was not made a v^ew to Put them in possession of it, but of the property therein contained. There is no evidence that the plaintiffs were possessed of the house, nor do they prove any title to it, which if the house was vacant might have drawn to it the possession, and the taking and converting the proPerty being laid in the declaration as a mere aggravation, by their failure to prove a right to maintain trespass for breaking and entering the house, which is the gist of the ac-^¡on the whole action fails, and they cannot recover in res-f " pect of matter laid in aggravation. See Starkie, 814.

of "the aet^re-lating to ex-C?U^5/pa?e 225) exempts tion the ne-andSimple-°1S ments of ly whilst carrying on his trade, if concefvesThe design of ab-ceasesntheand prosecution the moment tradlThis hlS tools and im-com^subject to execution. A. delivered the key of B!3notUSwith the view to put the former in possession of the house, but only of the property therein contained! — Held that B. had not such a possession as would enable him to maintain trespass forbreaking and entering the house.

Judgment affirmed.