Franse v. Owens, 25 Mo. 329

Franse v. Owens

25 Mo. 329 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

In justices’ courts, where the action is commenced by process, it is not necessary that a confession of judgment should be in writing, signed by the defendant and filed by the justice. The statutory provision on this subject is explicit. In proceedings in justices’ courts forms are disregarded, and it is not expected that entries should be made with the accuracy and precision which are required in recording the acts of courts of record. In the case of Rutherford v. Winn, 3 Mo. 12, this court disregarded the objection that no judgment was entered on a verdict rendered in a justice’s court. We see no distinction between that case and one where no formal judgment is entered on a confession. The defendant appeared at the return day of the process and confessed a judgment for specific sums for debt, damages and costs. This was sufficient whereon to issue an execution.

The statute authorizing the transcript of a justice’s judgment to be filed in the office of the cleric of the Circuit Court only requires the execution to be issued by the justice to be directed to the constable of the township in which the defendant resides. The defendant was served with process in the township in which the suit was begun, and in the absence of *335all evidence to the contrary we must regard that as his place of residence. There is nothing in the record showing that an execution out of the township would have been available. We are therefore of the opinion that the return of the constable on the execution, that there were, no goods nor chattels of the defendant whereof to levy the same in the township to which the writ was directed, was sufficient to warrant an execution from the circuit court clerk’s office, and that it was not necessary that the return should show that there were no goods or chattels of the defendant in the county whereof a levy might be made.

We are of the opinion that there is no weight in the objection to the authentication of the justice’s transcript. The following is the act of authentication: “ I certify that the foregoing contains an entry made on my docket.” This certificate is made to a copy of the judgment and the subsequent proceedings thereon. The statute does not require that a full and perfect record of the proceedings in the justice’s court should be filed in the office of the clerk of the circuit court; “ a transcript of the judgment” is all that is exacted. We see from the paper that it is in the usual form of transcripts made by justices. It is a transcript of the judgment, and the thing itself being seen, we do not understand why it should be rejected as evidence because the justice in certifying it has failed to term it a “ transcript.” The withholding of all power from justices of the peace to interfere with their records when once made up may have been the reason that the legislature deemed a transcript of the judgment a sufficient foundation for an execution. Reversed and remanded;

Judge Ryland concurring; Judge Leonard absent.