Jones v. Luck, 7 Mo. 551

Opinion of the Court, delivered by Tompkins, Judge. Luck brought his action of ejectment against Jones, in the circuit court of Pike county, where judgment being given for him, Jones appealed to this court. On the trial of the cause the plaintiff gave in evidence: 1st.- A patent from the United States, dated 20th. June, 1832. 2nd. A deed from Montgomery and wife to Joseph Basey, dated October 13th, 1832. 3rd. A deed from said Basey and wife to Edward McQuirc, dated March 18th, 1833. 4th. A deed from said McQuire, and Joseph Basey and wife, to Larkin Luck, dated 2nd. September, 1833. 5lh. A deed from Larkin P.

Luck to Diggs Luck, dated February 28th, 1834. The defendant admittedhimself to be in the possession of the premises as charged in the declaration. The defendant gave in evidence a deed from the sheriff of Pike county to himself, showing that Jones was purchaser of the land in question at a sale, by authority of an execution issued by the clerk of the circuit court of Pike, on a judgment obtained by one Thomas Bruce against Larkin P. Luck, the above named vendor of this land, to Diggs Luck, the plaintiff in this suit in the circuit court, appellee here.

To give the clerk of the circuit court authority to issue an execution against this land, the plaintiff in the execution, the said Bruce, filed ■on the 28th day of February, 1834, at forty minutes after two of the clock, P. M., in that clerk’s office, a transcript of the judgment of the justice on which the execution was issued. The deed of Larkin P. Luck to Diggs Luck appellee, as above mentioned, was filed on the 28th February, 1834, but at 4 o’clock, P. M., one hour and twenty minutes later than the transcript of the judgment had been filed.

The defendant also gave in evidence a transcript of all the proceedings of the justice, in the suit in which the said judgment was rendered. On the execution issued by the justice was this endorsement: — “Received of Jesse Shepherd the body of Larkin P. Luck as a prison debtor,” dated February 28th, 1834, and purporting to be signed by the jailor. The plaintiff objected to the reading of this evidence; and the circuit court sustaining the objection, the defendant excepted to the opinion of the circuit court. It is contended by the appellant, that the court committed error in excluding the evidence offered by him.

For the appellee it is said, “This case presents several points preliminary to the examination of the errors complained of. 1st. The bill of exceptions dees not state that it contains all the evidence offered in the cause. In such case, the court cannot see the relevancy of the evidence offered. 2nd. There was no motion for a new trial.

It is the practice of this court to reverse a judgment of the circuit court for improperly refusing a new trial, or when the evidence is very strong against the finding of the jury; and always in such cases it is expected that the bill of exceptions should show all the evidence given on the trial, and also that'a new trial was prayed. But I cannot conceive why, in this case, the appellant should have been required to show that this was all the evidence given.

It is very evident to me, that this evidence which the court rejected was not only relevant, but very material : and it certainly could not have availed him in any wise to have obtained a new trial, and liave all bis evi-idence rejected a second time. No appellate court could, on a revisal of the circuit court’s judgment, allow the appellant the costs of anew trial, so heedlessly and indeed wantonly demanded. The preliminary points then, appear to me to have nothing in them. Ejectment.

Plaintiff claimed under one L. deed dated dant claimed as purchaser. at sheriff’s of'ln 7execu-tion, issued on a judgment a-in'th*ekcierk’s office on the February ¿8th 1834. peared that the deed was filed minutes after til© * transennf* was filed. , purchaser1*at griff’s sa'e as thoPlienat’-the filing of the transcript. In order to tate^of the de-•onlynecessary clerk’soffice^ transcript of and no tí (mm-piete copy or the justice’s docket, relat-«ause,*° *he The main, then are: ist.

The copy of the judgment of the justice, filed with the clerk of the circuit court, was defective in being a copy of the judgment only, and not a complete copy of the justice’s docket. To this purpose several authorities are cited, Tho 18th

section of the 6th tablish justices’ courts,

article of the act to es-¡5, p. 364 of the digest, declared that “every justice, on demand of any person in whose ,, , , , 'r , favor he shall have rendered judgment lor more than ten dollars, exclusive of costs, shall give to such person a certified transcript of such judgment; and the clerk of the circuit court of the same county in which the judgment was rendered, -shall, upon the production of such transcript, file the same in his office, and forthwith enter such judgment in the docket of the circuit court judg-ancj decrees, and shall note therein the time of . ’ filing such transcript.” The copy of the judgment then, ap that the plaintiff is required to file in such case; an(j j^c 19th

section of said act provides, that every such i ^ judgment, from the time of such filing of the transcript thereof, shall have the same lien on the real estate of the defendant in the county, as a judgment of the circuit court of the same county, shall be equally under the con-the circuit court; and shall be carried into execution in tho same manner and with like effect asthejudg- , „ , . ., . 0 ments of such circuit court, &c. The lien then of this judgment, supersedes that of the karkin P- Luck to the appellee Diggs Luck, being first filed for record. 2nd.

It is contended by the appellee, that the execu-^on *ssue<^ t>y the justice, shows that tho defendant was arrested and committed to jail on the day judgment was rendered; that no discharge from imprisonment is shown;, and that this is prior to the writ under which the land is A Sold. Therefore the plaintiff insists that this is an extinguishment of the debt, and that the sale is therefore void. He cites and relies on 6 Durnford and East. 525, Clark v. Clernort & English; 4 Barrow, 2482, Vigeri v. Aldrich; and 8 Johnson, 366, Jackson v.

Bartlett, where is said, that if the plaintiff in the execution voluntarily discharges the defendant after he is taken on execution, that it is a satisfaction of the judgment. Now this in-dorsement of the jailor above noticed, made on the execution, is no evidence certainty that the plaintiff in that execution, assented that Larkin P. Luck should be discharged. The indorsement on the execution is this: “Received of Jesse Shepherd the body of Larkin P. Luck, as a prison debtor,” signed by the jailor. By what authority the jailor makes indorsements on executions we are not told.

Nor does that indorsement tell who Jesse Shepherd is, from whom the body of Larkin P. Luck, the prison debtor, is received.

We may certainly, by looking at the constable’s return, see that he signs his name J. ■Shepherd, and therefore believe that this jailor received the body of the prison debtor from him; but this is not technical accuracy: and those persons who seek to sustain judgments, such as this, where all the defendant’s evidence has been rejected, and this rejection attempted to be justified in the face of the statute, speaking in plain terms, against the appellee, should see that they themselves at least, conform to the rules of law. This appellee, Diggs Luck, after a judgment is rendered against his vendor, Larkin P.

Luck, takes a deed from said Larkin, and runs a race with the plaintiff in that judgment to get his deed filed for record, before the plaintiff in that judgment could get a transcript of his judgment filed. He is too slow. The transcript of the judgment is filed one hour and twenty minutes too soon for him; and the modest man contends that a complete transcript of the justice’s proceedings should have been filed, for the very good reason probably, that an awkward justice of the peace might have been detained long enough mak-ingout this transcript for him to have filed his deed first.

The language of the statute is plain and imperative. It commands the justice to give , the plaintiff a. certified transcript of the judgment; and it also commands the clerk of the circuit court to file such transcript in his office, declares ita lien, &c. on land. ’Such being the language of the law, it seems, not a little strange that the appel-^ee c*tes authoritÍ8S to prove that by the word “judgment,” something else than judgment was intended. Neither the reporterof the cited cases, nor.the judges that decided them, ever probably read our statute, and their decisions have no application to the subject.

Because then, the circuit court rejected the evidence offered by the defendant, its judgment is reversed and the 'cause will be remanded. Napton, Judge, absentfrom the bench.