8 Mo. 252 | Mo. | 1843
delivered the opinion of the Court.
Evan Morris commenced a suit before a justice of the peace of Crawford county against Wilson Lenox and Samuel Martin, and filed the account following against them: — ■
“For one horse colt, valued at_____________$50 00
Damages in loss of said colt_______________35 00-$85 00.”
Judgment was given for Morris, and Lenox and Martin tools: an appeal to the Circuit Court.
An act of 12th February, 1839, required any person, aggrieved by any judgment rendered by a justice of the peace, before taking an appeal, to make an affidavit before the justice, that he does not take such appeal for the purpose of vexation and delay; but because he considers himself aggrieved by the judgment of the justice. This appeal was taken on the 4th January, 1840. The affidavit was not made as required by law, and when the cause came into the Circuit Court it was dismissed, on the motion of the plaintiff, made on the second day of March next ensuing. It being then too late to take another appeal in due form before the justice, Lenox and Martin applied to the Circuit Court for a writ of prohibition to restrain the justice from any further proceeding in the cause; and a writ was accordingly issued, and Morris appealed, the prohibition being made perpetual.
A writ of prohibition issues from a superior to an inferior court to restrain the latter from exceeding its jurisdiction. (5 Bacon, 446, title, “Prohibition.”) The justice clearly had jurisdiction here, and the writ was improvidently issued.
Every man, when he is engaged in a suit, is supposed to know the law. We can’t proceed in a law-suit on any other principle. This law, requiring an affidadavit to be filed before an appeal is taken, was passed on the 12th day of March, 1839, and the appeal, in this cause, was taken on the 4th of January next ensuing.
The defendants had time enough to inform themselves of that act, and although it may be a hardship, yet it is one that proceeds from their own negligence, and cannot now be relieved.
The judgment of the Circuit Court, making the writ of prohibition perpetual, must be reversed. The cause will be remanded to the Circuit Court, which court will remand it to the justice of the peace, to be proceeded in according to this opinion.
