Stevens v. Chouteau, 11 Mo. 382

Stevens v. Chouteau

11 Mo. 382 | Mo. | 1848

Napton, J.,

delivered the opinion of the Court.

The only question in this case is, whether an execution issued by a justice of the' peace, returnable in sixty days, instead of ninety days, will justify the officer who levies it. Is the execution merely erroneous or absolutely void on its face?

There can be no doubt that a writ issuing from the Circuit Court, returnable out of term, is only erroneous, and not void. State, use of Ray, vs. Milburn, 11 Mo. R. A distinction has however been recognized by those eourts which have decided this principle, between executions issuing from courts of limited and inferior jurisdiction and those ema*385nating from courts of record of genmíáf jurisdiction. Upon reflection, we think there is sound policy in the distinction. A justice has no power over writs after they have issued; the power of amendment is not given by the statute, and from the statute alone he derives his authority. He has no common law or general jurisdiction. On the other hand, the Circuit Courts are invested with a full control over all process emanating by their direction or from the office of their clerks, and this power can always be exercised in time to prevent any irremediable injury arising from mistakes or abuse of its process by its officers. But the jurisdiction given by the statute to justices is not. only limited, but summary.— From the long intervals occurring between the sittings of the superior courts, it would be difficult, and, in some cases, impracticable, to correct by appeals, writs of prohibition and other modes prescribed by law, the mischiefs that would result from the execution of illegal process emanating from justices’ courts. . if the process be held merely erroneous, and not void, property may be sacrificed and the owner be without substantial redress. Hence, it is believed to be sound policy to adhere to the decisions of other States on this subject, and require the process which emanates from these inferior courts to conform substantially to the requisites of the statute. Toof vs. Bentley, 5 Wend., 276; 9 Wend., 388; 16 Verm. R., 393.

The other Judges concurring,

the judgment is affirmed.