Lutes v. Perkins

6 Mo. 57 | Mo. | 1839

Opinion of the Court delivered by

Tompkins Judge.

Perkins sued the plaintiffs in error before a justice of the peace and obtained judgment. They appealed to the Circuit Court, and that Court having given the same judgment, the cause comes here by writ of error. The justice of the peace, residing in Wilson Township, directed his process to the constable of Saline township in the said county. On the back of the process issued by the justice was this endorsement, “at the risque and request of the plaintiff I authorise John Perkins to serve and return this writ.” This endorsement was signed by the justice, and the return was “that the writ was served on Dulany &c.” ( When the caso come into the Circuit Court, the defendants moved that Court to set aside the judgment of the justice for these reasons, viz: 1st the justice hád no jurisdiction either of the cause or of the person of the defendant, ánd The justice had no right to appoint a person out of his township to serve the summons in this cause. 3rd There was no service of the summons before judgment was rendered by the justice. The court over ruled the motion to dismiss and allowed the appellee, plaintiff before the justice, to give evidence to show that there was no justice of the peace in Saline township at the time this action was commenced, except the assignee of the note, and that there was no constable in said township; exceptions were taken to this decision of the Court; and it is assigned for error that the motion to dismiss was overruled.

Whenever there shall be no justice in the township, whore any suit, cognizable before a justice of the peace. ougb ¿ R* i,e brought, or whenever all the justices of the peace of such township are'interested in any such suit, or other-x J wise disqualified by law for trying the same, every such suit brought before some other justice of any adjoining township of the county. See 10th section of 1st article of the act to establish justices courts, &c. page 349 of the di„est 0f £535. pc was contended that it ought to have appeared , air the proceedings oefore the justice that the necessity °f applying to a justice, of an adjoining township existed, T}ie statute does not declare it to be necessary to preserve any such evidence on the justices books, and in my opinion the circuit court committed no error in permitting the deuce to be given before itself.

Whenevor a ustice of th * peace to em-P°rS)0® to ces, under the 20th sect, of 2d art. of tho act relating to justices courts (R. C. 1835, p. 352,) the justice is not restricted in his choice to an inhabitant of his own township. Appeal from a justices court, dof’t appeared in tho circuit court and moved to set asido the judgment of the justice. Hold not to bo such on appearance and defence as will cure tho want of service of tho summons, and that the circuit c^urt in such caso, (there having been no service of tho summons,) erred in entering up judgment against defendant.

2nd. I can see no reason why a justice of the peace should be restricted to his own township, when it becomes noces-sary to empower any suitable person to execute process; the twentieth section of the second article of the above mentioned act requires only that the justice shall be satisfied. 1 J # J necessity and that the appointment shall be made, at the request and risk of the plaintiff. The circuit court then pears to have committed nó error, in refusing to dismiss the 1 . „ suit tor this reason.

3rd. The return on the process issued by the justice shows that the summons was served on tho defendant Dulany, and not on Lutes. The circuit court then committed error, in en- . . . T .... ... termg up judgment against Lutes; tor this reason its rnent is reversed, and the cause will be remanded to court, and it will proceed therein in conformity to this opinion.