Rankin v. Perry

5 Mo. 501 | Mo. | 1838

McGirk, Judge,

delivered the opinion of the court.

Perry, as administrator of Ennis, presented a claim against Rankin & Honey, the representatives of Honey, deceased, for a demand due to his intestate from the intestate of Rankin* & Honey. On the trial of the cause, the county court gave judgment against Perry. He then took a writ of error from the eircuit court; and when the same was brought there, he assigned for error: 1. That there is no legal judgment in the case. 2. That there is no affidavit filed in the case by the plaintiff, as the law requires. 3. That the proceedings are irregular, &c. The defendants joined in error, and the court reversed the judgment in the case, and remanded it to the county court. Rankin & Honey appealed to this court.

A"presented a claim against the administrator of ment of the ty court was reversed, and the writlremanded. Meld, that this de-cieion of the oir-«mch'aa one a» M«ld be appealed tfoa>- - B, in the county court, and the county court giving judgment against him, ho took a writ of error from the, circuit court, by which circuit court the judg- edbr the in tlie circuit e»urt was, that he »?f{f/edanaffida-9th vit. in pursuance of the 9th sec. of a.dminUuationtlie aot. If thi» b* error, though it not follow of the* record Tn-asmuch as the oat!l required by have beenSadmin-isteredon? terms, afid consequently therecord^n > clearly such an as the plaintiff pkmoTandonly showed’that the county court pro-th^elai'm^Judgment of the brcult court reversed with costs,

Mr. Cole, of counsel for the defendant, Perry, has made a motion to dismiss the cause; because he alleges that the judgment of reversal of the circuit court, is not such judgment that a writ of error oi appeal will lie from> This court think this objection is not well founded. The 7th section of the 7th article of the act to regulate practice at law, (Rev. Code, 470,) says, “every person aggrieved by any final judgment or decision of any circuit court, may appeal.” The law regarding a writ of error is the same. It is-most clear the decision must be final on the point, and the cause must, by that or some other one in the cause, be disposed of before the same can be in a condition to be brought to .... ¡, tnis COlUt.

. . In this case the decision was, that the defendants’ decision in the county court be reversed. This decision destroyed the judgment which the defendants had in their favor; and if this judgment was erroneously reversed by the circuit court, the judgment reversing it should be reversed; then the effect will be to restore the judgment of the county court. I am, then, of opinion, the motion should be overruled.

This motion being overruled, the next inquiry is, did the eircuit court of Jefferson county err in reversing the judgment of the county court? I think the circuit court did err in doing so. The first error assigned is, that the plaintiff, Perry, had not done his duty to entitle him to su't> and now, that the'judgment is against him, he wishes to take advantage of his own neglect, set the whole aside, and begin again. The law, as found in the section of the 4th article of the administration act, (Rev. Code, 56,) declares, that “no county couYt shall al-l0w any demand against ariy estate, unless the claimant ^rst make oath in open court, or file an affidavit with such claim, that he has allowed all just credits,” &c. By this» we see the oath may be made in open court oretenus; then it will not appear on record at all; or, if it suits his con^e-nience better, he may, when he presents his claim, file the affidavit with the claim. This is not intended to be the foundation of the plaintiff’s cause of action, but is some security against unjust claims on dead men's estates. This security the court must take before they allow a claim; and if the claimant will not give it, the court adjudge against him for that reason, if there be no other. If the court will do to the contrary, the other party may make this the subject of objection, and save the matter by a bill of exceptions. But, in this case, if the plaintiff will not make the oath in open court, nor has not filed his affidavit, the court cannot but give judgment against him and disallow his claim. There is no error on this point in the judgment of the county court.

The other objection to the decision of the count court is equally unfounded; it is, that the court had no power to give the judgment. The third is general, and there is nothing in it. The circuit court, therefore, erred in reversing the judgment of the county court, and the judgment of the circuit court is reversed, with costs, the other judges concurring herrein.