97 Mo. 406 | Mo. | 1888
This is a suit to set -aside a deed alleged to be fraudulent, and an interference with plaintiff’s claim of title to certain land.
The pleadings need not be recited at length.
The petition presents the theory of plaintiff’s ownership of the land in question by virtue of a purchase at an execution sale under certain proceedings (the nature of which will fully appear later); that the execution debtor had made a fraudulent voluntary conveyance to one of the other defendants to hinder and dela(y creditors, especially plaintiff. This conveyance the court is asked to set aside.
The answer, besides a general denial, contains a special defense, asserting an equitable title in one of defendants ante-dating plaintiff’s present claim. The reply takes issue with the new matter in the answer.
At the trial, the plaintiff offered in evidence the sheriff ’s deed under which he claimed. It contained the usual recitals of levy and sale, and apt words
This deed was duly acknowledged. But the court (on objection) excluded the instrument. Plaintiff then offered a certified copy of the transcript of the justice’s judgment on file in the circuit clerk’s office. This copy recited the docket entries in the cause, including the judgment in favor of plaintiff. The certificate to the transcript was as follows: “I, F. H. Welteke, a justice of the peace, within and for Applecreek township, in Cape Girardeau county, Missouri, do certify that the above is a true and correct transcript of the judgment as by me rendered, in the above entitled cause. And I further certify that an execution was issued on the above judgment, on the twenty-eighth day of October, 1882, directed to the said
“Recorded March 13, 1883. H. R. English, Circuit Clerk.”
Except the recital in this certificate, no statement of the issue and return of the justice’s execution appeared in, or with the transcript.
The court rejected this offer.
Plaintiff then offered a certified copy of the execution issued by the justice on his ■ judgment with the nulla dona return thereon, but this also was ruled out.
Plaintiff then gave testimony tending to show that a like copy, to that already offered, had been delivered with the justice’s transcript to the circuit clerk, before the issue of the circuit court’s execution ; and defendant gave evidence tending to disprove that fact.
This was all the evidence.
Plaintiff then took a non-suit with leave, having saved exceptions to all the adverse rulings.
After an unsuccessful motion to take off the non-suit he appealed to this court.
A non-suit with leave is not, strictly speaking, an appropriate mode to secure a review of exceptions in a suit of this nature. Indeed, it has been expressly ruled that it cannot be resorted to. Gill v. Clark, 54. Mo. 415. But a majority of the court are averse to adhering to that ruling. The distinction it makes is regarded as of form rather than of substance and one that should now be abandoned. It is thought best to treat all civil
The statute relating to the issue, and enforcement of executions upon transcript judgments from justices of the peace has given the courts some difficulty in its construction. The decisions interpreting it are not altogether harmonious. One cause explanatory of differences in the conclusions reached in them has not been specially remarked upon. It is the change in the phraseology of the law from that construed in the early decisions on this subject. The part of Revised Statutes, section 2999, that governs the-present discussion is as follows: “But no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the eoun ty, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, and returned that the defendant had no goods or chattels whereof to levy the same.”
The words we have italicized were not a part of the statute when some of the decisions in Missouri on the effect of these executions were rendered.
We are only called upon now to construe the existing law. It is, therefore, not necessary to review, or attempt to harmonize decisions based on the wording of any former statute. We merely indicate the change that has occurred.
Under the present law, execution may issue, in some instances, from the circuit court on transcripts of justices’ judgments without a prior return of nulla bona
It follows that the objections to the sheriff’s deed and to the copy of the justice’s transcript should have been overruled by the trial court.
The copy of the justice’s execution and return thereon would have been unnecessary and merely cumulative, at the stage of the case when offered (in view of what has been said in this opinion), if the other papers mentioned had been admitted in evidence as they should have been.
The judgment of the circuit court is reversed and the cause remanded, the costs of this appeal and of the former trial to abide the final result of the litigation.