Little v. Little

5 Mo. 227 | Mo. | 1838

Edwards, Judge,

delivered the opinion of the court.

This was a suit before a justice of the peace, in which .George M. Little was plaintiff, and James M. Little defendant, commenced upon a judgment obtained some .years before. The ,process was a scire fucias,- running in the following words: “State of Missouri, county of St. Louis, ss. To the constable of St. Ferdinand township, in said county, greeting. Whereas,” &c. The defendant appeared and declared himself ready for trial before the justice, anda jury was swonrand found a verdict for defendant. The plaintiff appealed to the circuit court. There the defendant caused the witnesses which he had had subpoenaed by that court in this cause to be called, and upon their answering, the defendant, by his counsel, remarked that, before the jury was sworn, he had a mo.tion to make in the cause; and thereupon moved, the court- todimiss the appeal, upon the ground that the process was insufficient, not running in the name of the State, and not in conformity with the statute; and the court decided that said process was irregular and insufficient, and that the appeal must be dismissed, and. there.upon dismissed the case.

The defendant insists that, if the.proeess was in any respect,such defect was cured by the appearance of the defendant, and going to trial on the merits; and refers to sec. 4, 350, R. C. '35, and to 3 Mo. R. 369. The ,section of law refeired to, provides that “suits may be .instituted before a justice, either by .volun tary anee and agreement of the parties, or-b.y ..process.” In .this case, the parties have.chosen,.to commence by pro-cess; and if that,process was defective in deviating from ,tbe statute law only,-.the appearance of the party and going to trial on the merits, would cure those defects; and to this effect was .the decision in the case of Barnett & Ivers against Lynch, in 3 Mo. R. 369. In that case, the summons required the defendant to “appear and. answer Thomas Barnett and -Ivers” — -omitting the ¡given name of .Ivers; and -the,court decided that if the objection could have been raised at any time,- it was cer* tainly waived by the repeated appearance 'of the defend* ant, and the proceedings before the justice. But the objection here is of a higher character. The process does Hot run ’n ^le name °f the State. The constitution requires that “all writs and process shall run in the name of the State of Missouri.” The writ commences, “ State of Missouri, county of St. Louis, ss.” These words merely fix the venue of the action. After these should follow,“State of Missouri, to the constable of St, Ferdinand township, greeting,” &c. As the process does not run in the name of the State, the appeal from the justice was property dismissed by the circuit court. The judgment of the circuit court ought therefore to be affirmed, and the other judges concurring, it is affirmed.