Burke v. Miller

CueRIER, Judge, delivered the opinion of the court. This is an action of ejectment. In the progress of the trial of the cause the defendants offered and read in evidence, against the objections of the plaintiff, a sheriff’s deed which purported to convey the premises in dispute to one of the defendants. The deed recited a justice’s judgment for $451.34; the filing of-four transcripts in the office of the-clerk of the Circuit Court; the issue thereupon by the clerk of four executions to the sheriff of the county, and the- advertising and sale thereon by him of said premises. The defendants also introduced and read in evidence, against the objections of the plaintiff, “ four records of the four several transcripts, as recorded in the record of transcripts in the circuit, [260] clerk’s office,” showing four justice’s judgments, aggregating $451.34, and that executions bad been issued thereon by the justice, with returns showing that no effects were found in the county whereon to levy the same. Upon the refusal of the court to exclude these records and the sheriff’s deed from the consideration of the jury, the plaintiff submitted to a nonsuit, and the cause is brought here by writ of error. The decision of the questions arising upon these records involves an examination of sections 16 and 17, article 7, of the act-in relation to justices’ courts. (R. C. 1855, p. 961, §§ 16, 17.) These sections are the same as sections 13 and 14, page 839, of Wagner’s Statutes, and have constituted a part QÍ: the statute law of the State for many years. Although their provisions seem perfectly plain and intelligible, this court, has nevertheless been repeatedly called upon to. declare their meaning and determine- the legal effect of acts done under them. Section 16 makes it the duty of every justice of the peace to furnish to the .party in whose favor he has rendered a judgment a certified transcript thereof “on demand.” It then makes it the duty of. the circuit clerk of the county in which the judgment was rendered, to file such transcript in his office upon its “production,” and “ to record the same in a book to be kept for that purpose,” and to <enter such judgment “forthwith” in his docket of court judgments, noting the time of filing. It is thus seen that the justice must furnish his transcript “ on demand,” and that the .clerk is required-to file it in his office, when produced for that purpose, “forthwith,” entering the judgment on his judgment docket. That a party, upon recovering a judgment before a justice, is at liberty at once to file the required transcript in the circuit clerk’s office, and thereby secure the advantages contemplated by the statute, is, it would seem, too plain a proposition to admit of a doubt. But the contrary is insisted upon here. It is claimed, for substance, that the judgment creditor must consume the life of an execution in hunting for personal effects of the^ debtor; that the transcript can be filed so .as to have effect, only after the justice’s execution has run its course of sixty or ninety [261] 'days, and been returned unsatisfied for the want'of personal effects whereon to levy it. This construction rests on artificial grounds, and is in contravention of the positive requirements of the statute.' It can not be tolerated. The only purpose and effect of ’filing the transcript is to create a lien upon real estate, as will be seen by an examination of the next succeeding section. That section (§ 17) provides that the judgment of the justice, upon the filing of the transcript,'shall create a lien upon the debtor’s real estate in the same manner as a judgment of the Circuit Court, and be enforced by its execution in the same manner as if it had been rendered in the latter court, except in one particular, namely: that no execution to enforce the justice’s judgment shall issue from the Circuit Court until an execution has been issued by the justice, and “ returned, that the defendant had no goods or chattels whereof to levy the' same.” It is this last clause that has occasioned all the difficulty that has been experienced in acting under the provisions of the two sections under review. The Legislature evidently had in view two objects in the enactment of these sections, namely: first, the creation of a lien upon the judgment debtor’s real estate, by filing a transcript in the Circuit Court in the manner stated; second, the enforcement of that lien by the process of a court of record. As we have seen, the lien might be created by filing the transcript with the circuit clerk at any time after the rendition of .judgment fiy the justice. The enforcement of the lien, however, was stayed until an execution had been issued by the justice and returned nulla bona by the proper officer. This was to avoid any unnecessary seizure and sale of the debtor’s real estate —a procedure liable to involve expenses béyond the amount of the judgment to' bo collected. But how was the fact of the issue and return of the preliminary execution'to be established? That is the principal question involved in the cáse at bar. The plaintiff .insists that the'records from the office of the circuit clerk, read in evidence by the defendants, were incompetent to show that fact, since they do not contain certified copies of the justice’s executions and the respective returns thereon; and Carr v. Youse, 39 Mo. 346, is relied upon as an authority fully sustaining that view of the case. [262] Carr v. Youse is distinguishable from the case under examination in this : In that case the evidence relied upon to show the issue and return of the justice’s execution, was the justice’s certificate of the facts, embodied in a transcript of his docket, certified by him aiid from his office; “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.” The difference is material, and is strongly commented on by Gamble, J., in Murray v. Laften, 15 Mo. 621. But were the records certified from the office of the clerk of the Circuit Court competent proof of the issue and return of the justice’s execution? The decision of this court in Franse v. Owens, 25 Mo. 329, answers this question in the affirmative. The transcript in that case, as in this, was certified by the circuit clerk, and from the records in his office. The two cases, as to (the point now under examination, are quite identical. The form of the record and the facts appearing of record are in form and substance the same. In neither record does the justice’s execution or the return upon it, in hmc verba, appear ; but the facts of the issue of the execution, and of the nulla bona return, are .set out in the transcript from the office of the clerk,of the Circuit Court. In accordance with the decision in Franse v. Owens, and upon the ground of its essential reasonableness, we hold that to be sufficient. (See Coonce v. Munday, 3 Mo. 314.) The principle of the decision in Ruby v. Hann. & St. Jo. R.R., 39 Mo. 480, fully sustains the conclusion reached in this opinion. The point is made that the sheriff’s deed, read in evidence, recited a judgment in excess of the jurisdiction of a justice of the peace. That does not appear upon the face of the deed. The judgment might have been against the defendant therein as a garnishee, and so above the ordinary limit of the jurisdiction of a justice. (Davis v. Staples, 45 Mo. 567.) But the transcripts subsequently given in evidence show that the judgments rendered by the justice were not in excess of his jurisdiction-. Judgment affirmed. The other judges concur.