Ellington v. Crockett

13 Mo. 72 | Mo. | 1850

RYLAND, J.

The important question for our adjudication in this case, involves the correctness of the action of the Circuit Court, in refusing permission to the defendant below, to read the record of the proceedings had in the suit between the same parties before Esquire Oden, for the same account due plaintiff by defendant, as well as for the same offset of defendant against plaintiff. We consider this the only point in the case.

The justice, Oden, before whom the suit was first brought, was sick at the day fixed for the first trial, and he continued the case at the costs of the plaintiff, and issued a new summons for defendant. On the day to which he had continued, the parties appear, and the defendant moves to quash the proceedings. The justice overrules the motion, hears the evidence. The defendant is sworn as a witness himself. The justice fails to determine ■the matter on this day, but continues it under advisement for a day or so, and at last comes to the conclusion that he had committed error in the case, that he had done great injustice to one of the parties, and probably to both ; that it was his duty to retrace his errors as soon as possible and correct them. He therefore says in his record, “ he conceives it to be his duty to quash the proceedings, non-suit the plaintiff, and tax him with the costs. Judgment is therefore given by the justice against the plaintiff, for the sum of eleven dollars and ninety cents.” These are the words of the transcript. Below, in the same transcript, he marks down the costs, the items, and to whom clue, and they amount to the above sum of $11 90. We can plainly see, that the judgment was entered only to he for costs, yet, the defendant insists, that this was a final judgment upon the merits of the case ; and that upon such merits he obtained the judgment; notwithstanding his own testimony given, induces 'two juries after this trial before Justice Oden, to find against the defendant two other verdicts upon the merits.

I am by no means willing to apply to the illiterate transactions of the justices of the peace, the same strict technical rules that I would apply to the proceedings of our courts of record. These justices are generally plain common-sense men, with no acquaintance with the forms or modes of judicial proceedings. They may often mean one thing, when their words recorded and written down, if construed technically, would mean a different thing altogether. Here it is plain that Justice Oden meant to do no harm, no wrong to either party. He says he wishes to retrace his steps and correct his errors. “Therefore he must quash the proceedings, non-suit the plaintiff and tax him with the costs,” hut in putting his intentions on record, he uses the language of a final judgment and not of a non-suit. I will not lend my aid to do the plaintiff any further injustice in this case. He seems to have had to pay the costs at every blundering step made in the case. The Circuit Court did right in rejecting this record of Esquire Oden. It did not exhibit a full adjudication upon the merits of the transaction between these parties. It was intended for a non-suit, and as such, it was properly considered and properly rejected. It is my opinion, therefore, that its judgment should be affirmed, and such is the opinion of my brother Judges.(^a) Let the judgment of the court below, therefore, he affirmed.

a (a) Tobe res adjudícala it must be tried and judgment on the merits — Ridgley v. Stillwell, 27 Mo. R. 132; Bennett v. Bennett, 38 Mo. R. 155; Speck v. Riggin, 40 Mo. R. 405. See also, Taylor v. McKnight, 1 Mo. R. 282, and full note.