70 Mo. App. 98 | Mo. Ct. App. | 1897
In the trial of this cause plaintiff set up that Cantrell had no title and that his claim was res adjudicate/,, it having been decided against him in the federal court, and offered the judgment of the federal court aforesaid in evidence. The court below excluded it. Two reasons are assigned by Cantrell in justification of the' action of the trial court: First, that the federal court was without jurisdiction to try Cantrell’s title — that there was no authority for a court to try a claimant’s title unless he, in his turn, gave bond to the officer making the levy and had possession of the property. Second, that the copy of the judgment of the federal court was not certified to by the judge of that court, that it was only authenticated by the certificate of the clerk of that court.
plaintiff of the claim and that he will release the property unless the plaintiff gives him an indemnifying' bond. If the plaintiff gives such bond, then the officer will proceed to sell, unless the claimant will then give a forthcoming bond, in which ease the claimant is entitled to the possession of the property and the execution is arrested.' Houx v. Shaw, 18 Mo. App. 42. But if the plaintiff gives a bond and the claimant does not, the statute contemplates that the officer shall return the claim and bond into court where the matter is docketed as a cause for adjudication in regular course. The statute, section 4928, reads that: “The officer shall return the claim and such bond or bonds as shall have been taken by him, to the court, * * * and the clerk shall enter the matter upon the docket, as near as may be as civil cases are docketed, * * *. The execution creditor shall answer or -demur to the claim returned by the officer * * * and the claimant may reply * * *. And all proceedings in relation to such claim shall be governed, as far .as practicable, by the law relating to pleading and practice in civil actions * * ”
It is plain that by directing the officer to “return the claim and such bond or bonds” as he shall have taken, and directing that on such return by the officer the matter shall be docketed as a cause, and that it shall be tried as a civil case, the statute' contemplated a case could be made upon a claim by the claimant and a bond by the plaintiff in the writ. It was not necessary to an issue between the parties that the claimant should also give a bond and take possession of the property.
One of the reasons assigned by Cantrell’s counsel in support of the contention that the claimant must also give bond before a casé is made for the jurisdiction of the court, is based on the direction which the statute gives as to the kind of judgment which the court shall render. The statute provides, in the section last cited, that if judgment be for the claimant the court will order the property released to the claimant. ■That if it be for the plaintiff in the writ, it shall be .against the claimant ánd his sureties, and the court ¡shall order the property sold. There is no force in the point.
The fact that the statute reads that in case of judgment against the claimant it shall be against him and his sureties, and that the property shall then be ordered to be sold, only results from the object of the legislature to meet the case as it would present itself in the instances where the claimant had given bond with sureties and kept possession of the property. But in instances where the claimant had not given bond and retained possession of the property, and the property
And so therefore our conclusion is that when a claim is made as provided by statute, and the plaintiff in the execution will thereupon execute a bond of indemnity and the officer returns such claim and bond to the clerk of the court, the court thereby obtains
But it will be noticed that the language of the statute just quoted is confined to state courts. The statute of this state, section 4881, which is what we 'must construe, includes courts of the United States. It reads that: “The records and judicial proceedings of any court of the United States, or of any state, attested by the clerk thereof, with the seal of the court annexed, if there be a seal, and certified by the judge, chief justice or presiding magistrate of the court, to be attested in due form, shall have such faith and credit given to them in this state as they would have at the place whence the said records come.” It is contended that the section covers records from all federal courts. Literally the language is broad enough to sustain such contention. But we do not believe it was intended to apply to the federal courts of the state in which the record of such court is offered. The language, “shall have such faith and credit given to them in this state as they would have at the place whence the said records come,” plainly implies that the records have come from some other state of the United States. To make it apply to the federal courts of this state, in view of what the certificate of the judge must contain, would be unreasonable. The judge must certify, under this statute, that the clerk’s certificate is in due form. It certainly was not intended that the judge of any other court should certify to a judge of a circuit court in this state that a clerk’s certificate was in proper form under the laws of this state. It would, of course, be assumed that such judge would be competent to determine that matter for himself.
The judgment will be reversed and cause remanded.