Carr v. Youse

Holmes, Judge, delivered the opinion of the court. This was an action of ejectment for a lot of land situate in the city of Hannibal, in the county of Marion. The plaintiff undertook to show title by virtue of a sheriff’s sale and deed under an execution issued from the clerk’s office of the Hannibal Court of Common Pleas upon a transcript of a judgment of a justice of the peace, in the township of Mason, in said county, which had been filed in the office of said clerk. The execution was directed to the coroner, reciting that there was a vacancy in the office of sheriff, but before any levy had been made by the coroner, a new sheriff having been appointed, the execution had been turned over to the sheriff and had been executed by him. The plaintiff offered in evidence his sheriff’s deed, together with a certified transcript of the entries and.proceedings before the justice as the same appears of record in his docket, not including, however, the execution issued by the justice, and the constable’s return thereon; and he also offered a paper purporting to be a certificate signed by the justice some two years afterwards, certifying the fact that the execution issued in the case had been returned nflla bona, giving also the words of the return as signed by the constable. The defendant objected to the admission of the sheriff’s deed in evidence for the reasons, first, that it recited an execution directed to the coroner and executed by the sheriff; and second, that it did not show the fact that a transcript of the justice’s judgment had been filed also in the clerk’s office of the Circuit. Court of the county of Marion. These objections were sustained, and the deed was excluded. — 350 — Objection was made also to the admission of the certificate of the justice as to the fact that an execution had been issued by him and returned nulla bona'; and the paper was excluded. No objection appears to have been made to the transcript from the justice’s docket. Thereupon the plaintiff submitted to a non-suit, and brings the case up by appeal. The first objection to the sheriff’s deed was not-well taken. It appeared on the face of the execution itself, as well as from the other evidence in the case, that at' the' time when the execution was issued and' directed to the coroner there was a> vacancy in the office of sheriff; In such case the execution must be directed to the coroner — R. C. 1855, p. 367, §§ 2 & 3. When so directed it is proper that the reason why it is so directed- should be- recited in the execution— Moss v. Thompson, 17 Mo. 405. It appears also that before the coroner had made a levy, the new shei-iff had entered upon the duties of his office, and the execution- had been turned over to him, together with other unexecuted process in the hands of' the coroner, and had been executed by the sheriff. We see no valid objection to this course' of proceeding. The statute expressly authorizes the coroner, when there is a vacancy in the office of sheriff, to perform all the duties which are by law required to be performed by the sheriff, until another sheriff shall be appointed and qualified — -Ibid. § 3. It may be taken- as fairly implied that when the vacancy in the office of sheriff shall have been filled, the function of the coroner in respect of these duties of the sheriff shall cease, and that all unexecuted process is to be turned over to the sheriff. Nothing is expressly said upon the subject in the statute; but the analogy of the provision respecting the duties of sheriff, in a similar case, as well as the reason of the thing, would seem to argue that such' must be the proper course — Dunnica v. Coy, 28 Mo. 525. In Duncan v. Matney, 29 Mo. 368, when the-former sheriff had made .a levy, and advertised the property for sale under the exe — 351 — cution, and his successor had completed the execution of the process by making the sale, it was said that the successor was bound to adopt the acts of his predecessor, so far as regular and legal, without subjecting the defendant to the cost of another levy and advertisement. This reasoning applies with equal force in the present case. What need of incurring the delay and expense of returning the execution, and suing out another directed to the sheriff? Nor is any authority shown which would authorize the coroner to proceed with the execution of the process, when not already begun, after the appointment of a new sheriff. The power and authority of the sheriff were as extensive as those of the coroner with respect to the execution of process ; and the writ having been executed by the sheriff in conformity to law, no ground is perceived, in this respect, on which the sale made by him can' be declared invalid. We think there was nothing in this objection. The second objection appears to have been well grounded. The deed did not recite, nor was there any evidence offered to prove, that the transcript of the justice’s judgment had been filed in the office of the clerk of the Circuit Court of Marion county. The general statute required this to be done before the' judgment could become a lien upon real estate within the county — R. C. 1855, p. 961, §§ 16-17. The latter act amendatory to an act establishing the Court of Common Pleas in the city of Hannibal, (Laws of 1851, p. 208, § 3,) provided “ that transcripts of judgments rendered by jus tices of the peace in Mason township, in the county of Marion, shall be filed with the clerk of the said court of Common Pleas, as well as with the clerk of the Marion Circuit Court, in the same manner and with the same effect as they are now filed with the clerks of the Circuit Courts, but that executions shall issue solely from the said court of Common Pleas.” The purport of this provision would seem to be, that the — 352 — transcript of a justice’s judgment .rendered in Mason township, .(within which the city of Hannibal was situated,) should be filed in the clerk’s office both of the Marion Circuit Court and of the Hannibal Court of Common Pleas, before the judgment should become a lien, and before an execution should be issued thereon by the clerk of the latter court. The reason of this enactment may be found in the consideration that Mason township was but a small part of the county, and that the office of recorder of deeds, and nearly all the records of the county affecting the title to real estate, were located at the county seat, where it would be necessary for all persons to go for the examination of titles to real estate within the county; and it may very well have been the intention of the Legislature to require the transcript to be filed there also for the purpose of notice, since it was to have the effect of being a lien, when filed, upon real -estate throughout the county. It may be true that the records of the Hannibal Court of Common Pleas would also impart notice to all persons concerned. Nevertheless, there would seem to be good reason fo.r requiring such notice in both places. Such is the obvious and direct purport, and such (as we think) the manifest interest of the statute, though it might be possible to find another and a forced construction. It must follow that the filing of the transcript also in the clerk’s office of the Marion Circuit Court was a condition precedent to the judgment being a lien on real estate, and a condition precedent to the authority of the clerk of the Hannibal Court of Common Pleas to issue an execution thereon ; and consequently, that this execution, being issued without authority of law, was null and void. A like construction has been given to a provision of the general statute, expressed in similar terms, to the effect that “ no execution shall be sued out of the court where the trail-, script is filed, until an execution shall have been issued by the justice and been returned nulla bona; and it has been held that the existence of such execution and return before — 353 — the issuing of execution by the clerk, is a condition precedent to tlie validity of the execution, or of the title to be acquired at the sale, and that such fact must be proved, either by the record of the clerk’s office, or by that of the justice, or otherwise the execution must be held void^— Ooonce v. Munday, 3 Mo. 374; Bank v. Elournoy, 4 Mo. 116. It has been strongly intimated, too, that the evidence of this fact should properly be filed in the clerk’s office where the transcript is filed, before an execution should be sued out, and that it- was the evident intention of the Legislature that the evidence of the authority to issue the execution should be made a matter of record in the clerk’s office; but it was not decided that the executions would be void if a transcript of the justice’s execution and constable’s return thereon was not actually so filed — Murray v. Laften, 15 Mo. 621. In that case it appeared by the transcript filed in the clerk’s office that an execution» had been issued and so returned, and the justice himself was not allowed to prove by parol that such had not been the actual fact. In this case it is attempted to prove this fact, not by any certified transcript of the record from the office of the clerk of the court, nor even by a certified transcript of the execution and constable’s return thereon from the office of the justice, but by a transcript of the justice’s docket itself, together with a mere certificate in writing, under the hand of the justice, certifying the fact that an execution had been issued by him, and had been returned nulla bona, giving also the words of the return. This evidence was clearly inadmissible. It is the transcript filed in the clerk’s office, and which is to be recorded there in a book to be kept for that purpose by the clerk, that is the evidence of the lien, and is the foundation of the execution to be issued to enforce that lien; and a certified copy of this record is the proper evidence of the authority to-issue the execution. If such record of the clerk’s office does not contain the justice’s execution and the return thereon made, then (it seems) such, execution and return may be proved by the record of the justice, (Coonce v. Munday,) or a. cer — 354 — tified transcript of the same ; but it was distinctly declared in Murray v. Laften that this fapt could not be proved by the parol testimony of the justice. His certificate in writing is no better evidence than his testimony as a witness would be, nor so good, for a witness on the stand could be cross-examined. Here the justice is not even called as a witness, but his certificate in writing is offered as evidence to prove these facts. Better evidence might have been procured, namely, a certified transcript of the execution and return. We are not aware of any principle of law on which this certificate could be held to be admissible evidence against the objections of the other party. If it had been admitted without objection or exception, all objections might have been considered as waived, and then it might have been held sufficient. Here objection was made and sustained. We think the paper was rightly excluded. On this evidence offered by the plaintiff, we think there was no error in excluding his sheriff’s deed. Judgment affirmed ; the other judges concur. Motion for rehearing filed, taken under advisement, and overruled at March Term, 1867.