17 Mo. 414 | Mo. | 1853
delivered the opinion of the court.
Huff commenced a civil action in the.Circuit Court of Buchanan county to recover possession of a tract of land. In his petition he claimed title to the premises under a sheriff’s deed, by which the title of the defendant was conveyed to him. The sale by the sheriff was made under two executions issued from the Circuit Court upon transcripts of two judgments confessed by Knapp in favor of Huff, before a justice of the peace, which transcripts had been filed in the office of the clerk of the Circuit Court. The defendant, in his answer, admits the judgments before the justice, the filing of the transcripts, the issuing of the execution from the Circuit Court, the levy and sale-by the sheriff to the plaintiff, and the execution of the sheriff’s deed; but asserts that the whole proceeding was inoperative- and void, because, as he alleges, the pretended judgments confessed before the justice of the peace, were confessed on a day which was not a regular law day of the justice, and not a day to which any cause pending before the justice had been continued ; and that the confessions were not made at the office of said justice, but at some other place, and therefore, the judgments, and all subsequent proceedings, were void. In his answer, the defendant admits that, at the date of the sheriff’s sale to the plaintiff, he was in possession of the premises, and has ever since continued in that possession, holding under his.
In Oyster v. Shumate and Ammerman, 12 Mo. Rep. 581, a case was presented to this court, involving the power of a justice of the peace to take the confession of a judgment on a day other than his law day. In that case, an execution had been issued from the Circuit Court upon the transcript of a justice’s judgment, and a motion was made to quash the execution. It appears from the opinion delivered in the case,'that the Circuit Court had permitted the justice to testify on the hearing of the motion, and that he stated that the confession was made' on a day other than his law day, and was not in writing, as required by the statute. The Circuit Court quashed the execution, and on error to that court the decision was affirmed in this court on both the grounds of the motion ; first, because the confession was not on a law day ; second, because it was not in writing. In Hunter v. Reinhard, 13 Mo. Rep.
In the statute establishing justices’ courts, every justice of the peace is authorized to hold a court for the trial of actions enumerated in certain sections. The second section of article
It is apparent, from what has been said, that we do not as
It is the opinion of the court, there is nothing in the statute to forbid a justice from taking a confession and entering a judgment thereon, on other days than his law days, and that, on the contrary, the statute contemplates such practice.
One of the judgments in this case appears, on its face, to have been confessed by a writing signed by the defendant, who was present personally before the justice. The judgment, with the concurrence of the other judges, is affirmed.