5 Mo. 233 | Mo. | 1838
delivered the opinion of the court.
This was an action brought by Montgomery, the plaintiff in error, against Farley, tor the recovery of a house and lot. Robinson was admitted as co-defendant. Judgment was given for the defendants, and to reverse it this writ of error is prosecuted.
The plaintiff proved possession in himself, and those under whom he claimed, by deed, dated 27 th March, 1828, foi several years before the date of this deed. The defendants read in evidence the transcript of a judgment recovered against the plaintiff and another, for $83 01 debt, and $>1 76 costs, filed in the office of the clerk the circuit court of St. Louis county, 28th April, 1830, and a certificate of the clerk of the county court of St. Louis county, that among the dockets, files, books and papers of Joseph N. Gamier, late a justice of the peace, delivered to him and remaining in his office, is an execution in favor of Nathan Gildersleve v. Montgomery and Jones, reciting a judgment for $88 03 debt, and $¡1 76 costs.
The judgment above mentioned was obtained before t.he same justice and between the same parties. The lot in dispute was sold on an execution issued by the clerk of the circuit court of St. Louis county on the transcript of the judgment filed as above mentioned, and the sheriff’s deed for the same to Robinson was read in evidence.
The act of assembly requires that no execution shall issue from the office of the clerk of the circuit court on a transcript thus filed, till an execution has been issued by the justice, and returned no goods found. _
lhe question to be decided is, whether there is such a variance between the execution issued by the justice, and the judgment rendered before him, that the execution should notfiave been read in evidence.
The case of Collier v. Easton, (1 vol. Mo. Decisions, and the authorities there cited, p. 469,) is in point to :s»ow that the variance is immaterial; tor, says the court, “had the defendant in the cases cited attempted to take advantage of these variances, they would have been amendable, and a third person would not be allowed to take such an advantage.” It is my opinion, then, that the circuit court committed no error in permitting the (execution issued by the justice to be read in evidence.
The counsel for the plaintiff also offered to prove that when the judgment (of which a transcript was read in evidence) was obtained against him by Nathan Gilder-sieve, and at the time the suit was commenced, he did not reside in the township of St. Louis, in which the justice resided, and in which judgment was rendered against him. He should have raised that objection before the justice, and if injustice had been there done to him, he should have appealed to tire circuit court. The records of a judgment offered in evidence in another suit cannot be invalidated by parol testimony, or matter in pais.
