Hazeltine v. Reusch, 51 Mo. 50

Hazeltine v. Reusch

51 Mo. 50 | Mo. | 1872

Wagner, Judge,

delivered the opinion of the court.

This appeal is prosecuted from a judgment of the court below dissolving a temporary injunction. It appears from tbe record that tbe plaintiff sued tbe defendant before a justice of tbe peace, and on a trial before a jury a verdict was rendered in the defendant’s favor. On tbe same day tbe plaintiff filed bis affidavit and bond, and perfected bis appeal to tbe Circuit Court.

Tbe justice failed to send up tbe transcript in time for a trial at tbe next term of tbe Circuit Court, after tbe proceedings were bad before him, but it was filed in time for a hearing at tbe next succeeding term. When tbe case was reached on tbe docket tbe defendant made no appearance, and tbe plaintiff bad judgment. Subsequently an execution was issued, and tbe defendant presented bis petition to tbe judge of tbe Circuit Court, seeking to enjoin tbe collection of tbe money. A temporary restraining order was granted, but, upon a final hearing, it was dissolved.

Several questions are raised here, but they are technical in their character and have little merit.

It is contended that because tbe justice did not enter up a formal judgment on tbe verdict, therefore no appeal would lie. But this court has never applied tbe precise and rigid rules of practice to proceedings before justices of tbe peace. Tbe justice has not tbe *51discretionary control over verdicts, possessed by a court of record, and he is required to enter the verdict of the jury on his docket, and give judgment accordingly; and it has therefore been decided that the effect of a formal judgment ought to be given to a verdict:' as soon as it is-entered on a justice’s docket. (Rutherford v. Wimer, 3 Mo. 12; Franse v. Owens, 25 Mo. 329; Morse v. Brownfield, 27 Mo. 224.)

Again, it is said that there was nothing to show that the Circuit Court had jurisdiction at the time it gave the judgment. When this petition was heard it seems that the papers could not be fbund, but it was conclusively proven that when the trial was had in the Circuit Court, and the judgment rendered, the afiidavit and the appeal bond were both among the papers in the clerk’s office. Moreover, the defendant did not show any equitable claim to relief. No evidence was introduced to show that the judgment was unjust, or that he did not owe the debt. Whatever technical' errors may have existed in the proceedings that were prayed to be enjoined, were released by the injunction. (Wagn. Stat. 1030, § 10.)

Wherefore it results that the judgment must'be affirmed.

Judge Adams concurs. Judge Bliss absent.