Murray v. Laften

Gamble, J., delivered the opinion of the court. Judgments were recovered against Miller, the owner of the property-in question, before a justice of the peace, and transcripts of the judgments, including executions thereon and the Constable’s returns of nulla bona upon the executions, were filed in the office of the clerk of the circuit court in May 1844. Executions issued from the circuit court upon these judgments, and the property was sold and conveyed by the Sheriff to the plaintiff. Upon the trial of the present action, the plaintiff gave in evidence the transcripts from the justice of the peace, the executions from the circuit court, and the Sheriff’s deed for the property. The defendants introduced the justice of the peace, who produced certain papers which he testified were the original executions in the cases before him against Miller; and upon inspection of these papers they appeared to be return- . able in sixty days from their date, although the sums recovered in the [624] several judgments were each above one hundred dollars. The transcripts of executions which were filed in tiie clerk’s office showed the executions to be returnable in ninety days from their date, and the justice testified that this was a mistake in copying the executions, when the transcripts were about to be filed. The papers thus produced by the justice, were given in evidence, although the plaintiff objected both to the testimony of the witness and to the papers being received in evidence. The evidence being before the court, an instruction was given, that the plaintiff could not recover. The questions to be determined, depend upon the admissibility and effect of the evidence given by the defendants. It was decided, in Coonce vs. Munday, 3 Mo. Rep. 374, that where the party obtaining a judgment before a justice of the peace filed a transcript of the judgment in the clerk’s office, and obtained an execution upon which the real estate of the defendant was sold, the party claiming under such sale must prove, on the trial of an ejectment for tire property, that an execution had been issued by the justice and had been returned nulla bona, before the execution issued from the circuit court. In that case it is stated, “that it did not appear by the transcript filed, that any execution had been issued by the justice before the execution issued from the circuit court.” In the present case, a different state of facts exists. Here, the transcripts from the justice show executions issued in regular form by the justice and returned nulla bo?ia, although the returns were made before the return day. If the testimony of the justice and the papers offered as the original executions, were admissible, and if it was competent to question the validity of the execution issued by the justice, then the case of Stevens vs. Chouteau, 11 Mo. Rep. 384, would sustain the position taken by the defendant below and maintained by the court, that the executions having been made returnable in sixty instead of ninety days from their date, were void. It is to be observed, that the justice’s execution constitutes no part of the title of a purchaser who buys under an execution issued from the circuit court. The process of the circuit court executes the judgment of the justice, and the prohibition against issuing an execution from the circuit court, until an execution shall have been isssued by the justice and returned nulla bona, requires that the evidence that such execution had issued and been returned shall exist in the office of the circuit eourt. This is understood to be the proper construction of the law of 1835. Revised Code 365; because, when the transcript of the judgment has [625] been filed, the statute provides that “the judgment shall be equally under the control, and shall be carried into execution in the same manner, and with like effect, as the judgment of thp circuit court;” and then immediately follows the language restraining the issuing of an execution until one has been issued by the justice and been returned. It is the natural meaning and force of this provision, that the court which is to execute the judgment shall possess the whole evidence on record, upon which its process is to issue, so that it may, in the exercise of the control given by the statute, act upon and restrain the process required to be issued. It is true, that the court, in Co once vs. Munday, intimate a doubt whether it is the duty of the clerk, before issuing an execution upon the judgment of a justice, to ascertain whether an execution has previously been issued by the justice; but it is rather surprising, that such doubt should be expressed when so much importance is given to the fact, that the party had not produced the evidence that such execution had issued. If it be a fact, affecting the legality of the execution from the circuit court, that one had not been previously issued and returned before the justice, and having such effect that property sold under the execution from the circuit court did not pass to the purchaser, then, surely, it is necessary that the court should be possessed of the document which is necessary to the validity of its own process. Again, the principal object in filing these transcripts is to reach the real estate of the defendant, and it is not to be tolerated, that the evidence upon which the validity of the execution and title to the property is made to depend, shall be hunted for through the loose, neglected and scattered papers of some justice in some remote township at a period when it would be difficult to trace either him or his papers. It may then be assumed to be the intention of the legislature, in this enactment, that the evidence that an execution had been issued and had, been returned before the justice, is to be filed in the office of the clerk of the circuit court. The purchaser who takes title under the process of the court, if he looks to, or is bound to look to, the records of the court, for the foundation of the execution, finds a judgment which authorizes the execution, and he finds that an execution has been issued and returned before the justice, he takes the title by his purchase, subject only to such objections that show that the proceeding is a mere nullity. If in this ease the execution of the circuit court was not a nullity, the title passed by the sale under it, and is not affected by facts which would have authorized the court to quash it. The transcript on file showed the judgment of the justice and an execution issued in due form of law, and the return of the Constable in the form required by the statute, but made [626] within the time allowed for the return of the execution. If this transcript was true in all its parts, the only objection that could be made to it was, that the execution was returned some few days before the return day. The case cited from 1 Coke 512, which is the same in 1 Comyn’s Digest 285 E. 3, is a case of an action brought against bailiffs for a false return upon a fieri facias, made before the return day of the writ, and it was held that they were not liable to the action because the return was a void return. This, it will be observed, was a question between the plaintiff in the execution and the officers, and involved the question whether the officers had made themselves liable to the plaintiff by the act of returning the writ. It was directly between the parties interested in the return and seems to have but little application to a case in which a purchaser is introduced who does not even claim under the execution. It cannot be necessary to refer to the multitude of cases in which the law has been declared, that the purchaser has no concern in any question affecting the validity of the proceedings under which he claims, unless the defect be such that the proceeding is a nullity. The Supreme Court of the United States held, in Blaine vs. The ship Charles Carter, 4 Cranch 332, in relation to executions said to have been issued before the day when, by said law, they could regularly be issued, that “if irregular, the courtfrom which they issued ought to have been moved to set them aside; they were not void because the Marshal could have justified under them, and if voidable, the proper means of destroying their efficacy have not been pursued,” In the present case, the circuit court had full power to vacate its own process, if irregularly issued upon the judgment of the justice, and before that tribunal the objections now made might have been availing, if made in proper time. It is the opinion of the court, that the party seeking to avail himself of the powers of the circuit court to enforce the judgment of a justice of the peace, should file in the office of the clerk a transcript of the judgment, in order to have alien on the real estate of the defendant and a transcript of the execution and Constable’s return when he wishes to take out execution from the circuit court.- While this is understood to be the proper course, under the statute, it is not designed to assert that the process of the circuit court will be void, if the transcript of the justice’s execution and Constable’s return is not filed in the clerk’s office, but if it is so filed, then the validity of the circuit court execution cannot be impeached in any collateral proceeding, by showing that the transcript so filed varies from the original execution and return, or, that the original execution or return is void. It is also the opinion of the [627] court, that the objection now taken to the process of the circuit court on account of the Constable’s return to the execution before the justice, is not available in this action. The evidence then, given by the defendant, was improperly admitted, and when admitted did not authorize the instructions given by the court. It will be seen, that it is here intended to modify the opinion gives in the case of Coonce vs. Munday, and to bring the proceedings under these judgments, into something like conformity to the general provisions of the laws by which the title to real estate is affected. The judgment is reversed and the cause remanded.