84 Mo. 139 | Mo. | 1884
Plaintiff sued defendant before a justice of the peace in Carroll county. Defendant filed his affidavit for a change of venue, which was granted and judgment at the same time entered against the defendant for costs, under section 2956, Eevised Statutes, 1879. The justice afterwards on the 22nd of December, 1880, issued execution on the judgment for costs, returnable ninety days thereafter. On March 16, 1880, the constable made return of nulla bona. On May 15, 1880, a transcript of the justice’s judgment was filed in the office of the clerk of the circuit court of Carroll county. On the 21st of August, 1880, an execution issued from the clerk’s office of Carroll circuit court on the transcript judgment. At the December term following defendant filed his motion to quash this execution for various reasons, which motion was sustained. Afterwards on the 26th of October, 1881, execution again issued on the transcript judgment and was levied on certain lands of the defendant. On
I. Section 2998 provides for filing transcripts of justices’ judgments in the office oí the clerk of the circuit court, and section 2999, Revised Statutes, 1879, provides that no execution shall issue out of the clerk’s office when such transcript shall be filed, until an execution shall have been issued by the justice, if the defendant resides in the county, and returned nulla bona. In Ruby v. Han. & St. Jo. Ry. Co., 39 Mo. 480, it was held that the certificate of the justice of the above facts is prima facie evidence on which the clerk of the circuit court may issue execution, but on motion to quash a party may show any defect or irregularity in the proceeding of the justice or constable. The evidence in the case at bar on the motion seems to be that the justice’s execution was returned before its regular legal return day. And when that appears the execution from the clerk’s office is shown to be improvidently issued and should be quashed. Secs. 2998 and 2999, supra. Judge Scott, in Dillon v. Rash, 27 Mo. 243, says: “Regularly, an execution cannot be returned before the return day.” The defendant may have no property whereon to levy when the execution is returned, but he may acquire it after the return is made.
II. The matters litigated in the first motion to quash were the same as those set up in the second motion, without the exceptions above noted. There was judgment on that motion from which no appeal was prosecuted, and those questions are, therefore, res judicata. Chouteau v. Gibson, 76 Mo. 38.
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IV. But as this case, upon reversal, may be further proceeded with, it is meet that we pass upon the question which would, in great measure, control any further disposition of the case. That is the construction of section 2956, Revised Statutes, 1879. The question is, when a ■change of venue is taken from a justice of the peace, and costs are “ taxed ” as provided in that section, whether an execution therefor may be issued by the justice who grants the change, and the-costs collected thereunder by the constable. The section provides that when a change of venue is taken, the party applying therefor “shall be taxed with” certain specified costs. Section 5595, Revised Statutes, 1879, provides that: “The several officers hereinafter named, and jurors and witnesses, shall be allowed such fees, * * * asare hereinafter provided, and the clerks of the courts of reeord, and the presiding officers of courts of inferior jurisdiction, etc., * * * shall thereupon enter the amount thereof upon their fee books, and the said clerk and the other officers before mentioned, shall, after the term of the court at or before which the services were rendered, if required * * * certify a fee bill of such services, and deliver the same to the sheriff, or other officer * * * charged-by law with the service of executions, who shall proceed forthwith to collect the same * *- in the same manner and with0 like effect, as on an execution.” This section is comprehensive and includes fees for services of officers and witnesses in all courts.
The State ex rel. Fulkerson v. Emmerson, 74 Mo.
The judgment below is reversed and the case remanded.