Blain v. Coppedge

Gamble, Judge, delivered the opinion of the court. Blain sued Coppedge in ejectment, and on the trial, produced the transcript of a judgment rendered by a justice of the peace against one Swinney, in 1842, for §40 debt and §4 50 interest and costs. Two days after the judgment was rendered, a transcript was filed in the clerk’s office of the Circuit Court. He next produced a judgment of the Circuit Court reviving this judgment, and also its lien. This judgment of the Circuit Court was in 1848. An execution, issued from the [496] Circuit Court, was next produced, which, on its face, purports to be issued upon a judgment of the Circuit Court, and has no reference whatever to any judgment of a justice of the peace. This execution, upon an objection made by the defendant, was excluded. A sheriff’s deed was next offered, which recited the execution that had before been excluded, and this, of course, was excluded. The plaintiff then took a non-suit and brings the case here, complaining of the exclusion of his evidence. 1. As the plaintiff was bound to produce a judgment, as well as an execution, and as he produced a judgment of a justice of the peace, he ought to have had an execution which issued upon that judgment. The execution he produced certainly purported to be issued upon a different judgment, for it recites a judgment of the eourt. It could not be issued upon the judgment of the Circuit Court produced in evidence, for that was not a judgment of recovery, but an award of execution upon the justice’s judgment. For this reason, the execution was properly excluded, and as the sheriff’s deed recited this same execution, and the sale was made by its authority, the deed was properly rejected. If there had been an execution produced, which issued upon the justice’s judgment, then the question of the authority to issue it, before one had issued from, the justice, would have been presented under Coonce v. Munday 3. Mo. Rep. 374. Burk v. Flournoy, 4 Mo. Rep. 311. The judgment is, with the concurrence of the other Judges, affirmed.