Ruby v. Hannibal & St. Joseph Railroad

Wagner, Judge, delivered the opinion of the court. This is an appeal from a judgment of the Circuit Court of Macon county, overruling a motion filed by the appellant to quash an execution issued by the circuit clerk of said county in favor of the respondent, and against the appellant. The execution was issued onA transcript of a judgment rendered before a justice of the peace, and only filed in the office of the clerk of the Circuit Court. The material •grounds relied on to invalidate the execution and‘reverse the judgment of the Circuit Court are, that there was no evidence on file in the court, or with the clerk thereof, to show that an execution had been issued by the justice, directed to the constable of the township in which the defendant resided, an,d returned that the defendant had no goods or chattels whereon to levy the same, prior to issuing the execution by the clerk of the Circuit Court to the sheriff, and that there was no sufficient return made by the constable to arrthorize the clerk of the court to issue an execution on the transcript, because it did not appear that the return was signed by the constable. The transcript was filed in the clerk’s office before the'execution was returned by the constable, and the evidence on which the clerk acted in issuing the execution, that the law had been complied with, and that the constable had made his return of no goods or chattels found whereof to make the debt, was the following certificate of the justice of the peace before whom the judgment was obtained, which was filed with the clerk previous to the issuance of the execution. After stating the case, he proceeds: “Execution issued to the constable of Beveir towpship/ ij\;which defendant resides, on the 5th day of June 4865, ré't’qrnable in sixty days, and returned on the 12th,-day of .August, T865, with the following return made by the constable,“t’o-wit: ‘ This execution returned not satis [483] fied, there being no property found to levy the same on.’ Given under my hand this 15th day of September 1865.— J. B. Clarkson, J. P.” The statute provides that no execution shall be sued out of the court where the transcript is filed, if the defendant is. a resident of the county, 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. In a case very similar to this, as far as this question is concerned, where an entry, was made on the justice’s docket, stating that an execution was issued at a certain date and given to the constable of the proper township, and it was returned by the constable that there was no property found to levy the same, with the constable’s name attache^, thereto, and the justice certified that it was an entry made on his docket, it was held that when the same was filed with the clerk, it was sufficient evidence that an execution had been issued by the justice of the peace and delivered to the constable, and that that officer had returned the same nulla bona, and fully warranted and authorized the clerk of the Circuit Court in issuing execution on the transcript — Franse v. Owens, 25 Mo. 329. In principle, that case cannot be distinguished from the one under consideration. The fact that the justice inserted the name of the constable in his certificate of entry from his docket can make no essential difference, as it all depends on the truth and accuracy of his certified statement. He certifies to the existence of actual facts; that the execution was issued to the proper officer, and that a certain return was made by that officer. Whether the justice designates the constable by his proper name, or merely by the description of his office, can have no controlling influence. The statute requires that an execum'n'^haillffi^-i^feewby the justice when the defendant reside's<ifl;tlie county^,be duly returned by the constable that hd-^aji ^nSfiiigOTclsAor [484] chattels of the defendant whereof to make the amount, before resort can be had to process on the transcript. But no provision has been made defining what shall be evidence that the execution has been issued and the return made when the transcript is filed antecedent to these proceedings. Doubtless the most satisfactory evidence would be a regularly certified copy of the execution and the return thereon ; but wé cannot say that the law absolutely requires this. When the justice certifies the facts, his certificate must be regarded as at least prima facie evidence, and will fully justify the clerk in issuing an execution on the transcript. _ It will not conclude the adverse party, and he may show, on a motion to quash, any defect or irregularity in the justice’s process, or the return of the constable; but till some evidence is introduced tending to impugn the acts of the justice or constable, or to falsify the certificate, the execution should be deemed valid. The judgment will be affirmed. The other judges concur.