13 Mo. 72 | Mo. | 1850
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
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) 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.