text:
    Manning, Respondent, v. Hogan, Appellant.
    1. A. instituted an action against B. on a judgment of a sister state. ITrom the transcript offered in evidence it appeared that the clerk certifying the same was clerk of a court other and different from that in which the judgment was rendered. It appeared also from his certificate that the record of the cause had been transferred by law to the court of which he was clerk, and from the record itself it appeared that two several executions had been issued by said clerk upon said judgment, and levies and execution sales made thereunder. Held, that the transcript was admissible in evidence although no law authorizing the transfer was produced.

      2. Under the revised code of 1845 no lapse of time short of twenty years from the time of the rendition of a judgment of this or a sister state would bar a right of action on such judgment.

      Appeal from St. Louis Court of Common Pleas.

    This was an action (commenced February 18, 1856) against John Hogan on a judgment rendered in a municipal court of the city of Alton, in the state of Illinois, in the month of October, 1838, against said Hogan and one W. G Pinckard. The defendant put in issue the rendition of the judgment, and further pleaded that he had resided in the state of Missouri inore than ten years next preceding the commencement of this suit, and that the cause of action did not accrue within ten years next before the commencement of this suit.
    The plaintiff adduced in evidence a transcript of the judgment sued on, certified as stated below in the opinion of the court. The court received the same in evidence against the objection of defendant. The defendant introduced evidence to show that he came to St. Louis to reside about April, 1845.
    The defendant asked the court to instruct the jury as follows : “ If the jury find from the evidence that the defendant has resided in the state of Missouri ever since the 10th day of April, 1845, and that the judgment, the transcript of which has been offered in evidence by the plaintiff, was rendered as early as the 4th day of October, 1845, then the plaintiff is not entitled to recover.”
    The court refused so to instruct, but, of its own motion, gave the following: “ The fact that the defendant has lived in this state continuously for more than ten years next before the commencement of this suit is no bar to this action.”
    The jury found for plaintiff.

      T. Polk, for appellant.
    I. The transcript of the judgment was improperly admitted in evidence. The judgment was rendered by the municipal court of the city of Alton. The attestation is by the clerk of the circuit court of Madison county. There was no proof of any transfer. But granting that there was such a transfer still the authentication was insufficient. The certificate was not competent to prove the judgment. It is not such certificate as is required by the act of congress. That requires the certificate of the clerk of the court rendering the judgment. If not authenticated as required by said act of congress, it must be proved just as if the act had never been passed.
    II. The action was barred by the statute of limitations. The statutory limitation ol five years applies to the case. (R. C. 1845, p. 716, § 2.) The case is not within the exception of the act. This is a judgment of a sister state. (Harness v. Green, 20 Mo. 316; R. 0. 1845, p. 90; 18 Pick. 325 ; 4 McCord, 378.) If the second section is not applicable then the first section is. The first section of article' 4 does not qualify the operation of section 2 of article 2.

      M. L. Gray, for respondent.
    I. The transcript was admissible in evidence. The statute of limitation was no bar.
   Richardson, Judge,

delivered the opinion of the court.

This suit was commenced in February, 1856, on the record of a judgment recovered in October, 1838, in the municipal court of the city of Alton, in Madison county, in the state of Illinois, against the defendant and William G. Pinkard. The transcript is certified, under the act of congress, by the clerk of the circuit court of Madison county, Illinois ; and the presiding judge certifies that the attestation of the clerk is in due form. No objection is taken to the form of the certificates, but to the want of power in the clerk of the circuit court to certify to the exemplification of the record of another court. The caption to the transcript is in these words : “Pleas of record in the circuit court of Madison county, state of Illinois, the same having been transferred to said circuit court from the' late municipal court of the city of Alton in pursuance of law in that case made and provided.” Then follows the declaration, summons and return of service, default, final judgment and execution. Also an alias execution issued on the 14th of October, 1845, by the clerk of the circuit court, in which it is recited that the records of the late municipal court are in the office of the clerk of the circuit court. On this execution there is an endorsement of a levy and sale which produced a credit of two hundred dollars ; and afterwards, on the 12th of August, 1846, a plwries execution was issued by the clerk of the circuit court, which shows, by the return, a further credit of seventy-five dollars made by sale of property. The clerk then states in his final certificate that “ the foregoing is a true and complete copy from the said municipal court as well as from the said circuit court of the process, pleadings and record had in said cause, as therein entitled, as fully as the same is now on file and of record in said circuit court.”

Only two points are made in this court, which are, 1st, that the transcript was improperly admitted in evidence ; and, 2d, that the action was barred by limitation.

It is insisted that the record and judicial proceedings of a court of a sister state can only be proved by the attestation of the clerk of the same court that rendered the judgment; and, conceding that the clerk of a court to which the records of another have been transferred can certify to the records of the latter, yet the law authorizing the transfer must be produced.

It is manifest from the transcript that the records of the municipal court were in fact in the custody of the circuit court, for the clerk certified that they were in his keeping ; but, independent of any verity imported by his seal, the issuing of two executions from the circuit court shows that this judgment was impressed with the action of the circuit court, and, being thus adopted, became incorporated as a part of its own proceedings. It ought to be presumed that^the clerk did not certify to a falsehood, and that the circuit court did not attempt to enforce a judgment not lawfully in its custody. If a transcript of a court of record is produced from. another state properly certified, we never inquire whether the court had authority by the local law to render the judgment, for we presume, not only that the jurisdiction was rightfully exercised, but that the record was in the custody of the proper officer and came from the right quarter; and if the court that renders a judgment becomes extinct and its records are transferred by law to another court, public convenience will be promoted, without danger of imposition, by allowing the clerk and judge of the latter court to make the requisite attestations. (1 Greenl. Ev. § 506; Gatten v. Robbins, 8 Ind. 184.) In Thomas v. Tanner, 6 Mon. 52, the transcript of a will, with the probate thereof taken in 1812 by the judge of probate for the district of Gape Girardeau, in the territory of Louisiana, with letters testamentary granted by the county court of Cape Girardeau county, in the state of Missouri, in 1821, certified from the records of the county court, was offered in evidence ; and the court held that it was admissible, and that as the record of the probate court purported to be kept in the county court it was not necessary to produce the law transferring the records of the probate court to the county court.

The first, second and third articles of the statute of limitations of 1845 do not in terms prescribe any limitation on actions founded on judgments rendered in this or any other state ; and the implication that any of the provisions of the law were intended to cover jixdgments of other states is excluded by the first section of the fourth and last article which declares that “ every judgment and decree of any court of record of the United States, or of this or any other state or territory, made or rendered after the first day of December, in the year eighteen hundred and thirty-five, shall be presumed to be paid and satisfied after the expiration of twenty years from the time of the l-endition of such judgment or decree,” &c. It was useless legislation to declaz-e that a judgment shall be presumed to be paid after the lapse of twenty years, if a period short of that time would bar an action on it. The court, in onr opinion, properly instructed on the question of limitation, and the judgment will be affirmed ;

the other judges concurring.


source: Caselaw Access Project

author: Scott, Judge,

license: Public Domain

text:
    Zeigler, Defendant in Error, v. Maddox, Plaintiff in Error.
    1. Where it appears from the face of a deed that it is a conveyance in trust to the use of the grantor, the courts will, as a matter of law, declare it void as against creditors.
    2. If it he sought to impeach a deed for fraud as against creditors, and the fraudulent intent he not apparent upon the face of the deed, it must be established by extraneous evidence; the triers of the fact — the jury, or the court sitting as a jury — must respond to the issue raised as to the existence of the alleged fraudulent intent.

      Error to St. Louis Circuit Court.

    This was an action (commenced September 25, 1855) against Turner Maddox, sheriff of St. Louis county, to recover possession of a stock of drugs, medicines, &c., in possession of said Maddox by virtue of a levy of an execution against one William L. Maddock. Zeigler, plaintiff in the present suit, claimed title to said stock of drugs by virtue of a deed of trust executed by said Maddock to secure certain promissory notes. Zeigler was trustee in the deed of trust. The cause was submitted to the court upon an agreed statement of facts. The notes were admitted to be bona fide notes. The deed of trust was duly recorded. It appears from the agreed statement that it was understood between Maddock, Zeigler and the cestui que trust, at the time of the execution of the deed of trust, that “ Maddock should retain possession of said goods until the maturity of said notes, and sell and dispose of them in the usual course of trade that “ said Maddock did keep possession of said goods and fixtures, -and sold in the usual course of trade, for his own benefit, from the time ho executed said deed of trust to plaintiff till the day of the levy and seizure of defendant.” The deed itself was not in evidence.

      The court simply found from the agreed statement “ that the property in question belongs to the plaintiff,” and gave judgment accordingly.

      Jones & Sherman, for plaintiff in error.
    I. The deed of trust was absolutely void as a trust for the use of the grantor. (R. 0. 1845, p. 525; 15 Mo. 459 ; Brooks v. Wimer, 20 Mo. 506; Martin v. Rice & Maddox, 24 Mo. 581; 24 Mo. 575 ; Walter y. Wimer, 24 Mo. 63.) It does not change the character of the deed that the agreement that the grantor should keep possession of the goods and sell, &c., was not incorporated into the body of the deed. It is agreed that there was such an agreement.

      Hudson & Thomas, for defendant in error.
    I. The deed of trust was valid upon its face, was duly acknowledged and recorded. It was made in good faith to secure the payment of a just debt. The parol agreement or understanding, if it could be considered at all, could not affect the legality of the deed. It is not pretended that there was any fraud in fact. The finding of the court is decisive of that question. (See Kneeland v. Cowles, 4 Chand. 46 ; 7 Mo. 245; 11 Mo. 369; 11 Gratt. 778; 8 Gratt. 148; 21 Ala. 333.)
   Scott, Judge,

delivered the opinion of the court.

The only issue in this case was whether the deed was fraudulent as having been made with intent to hinder, delay or defraud creditors or purchasers. That issue was one of fact to be tried by a jury. As the court assumed the task of a jury and took upon itself to try the issue in the cause, its finding should have shown how the fact in dispute stood between the parties. We do not see that there is any conflict between our cases on this question if the section of the statute concerning fraudulent conveyances, under which they were severally made, be regarded in their consideration. When it appears from the face of the deed itself that there is a trust or reservation of use to tbe grantor, the court, as a matter of law, declares tbe deed void in accordance with the first section of tbe act concerning fraudulent conveyances, which enacts that every deed of gift or conveyances of goods and chattels in trust to the use of the person so making such deed of gift or conveyance, is declared to be void as against creditors, existing and subsequent, and purchasers. In such cases there is -nothing for the jury to pass upon when the court sees that the deed is void upon its face. When the deed is fair on its face, but is affected with a secret trust in favor of the grantor, as such secret trust can only be shown by extrinsic evidence, the existence of fraud is a matter of fact to be tried by a jury, who will determine whether the deed was made with intent to hinder, delay or defraud creditors or purchasers, such case coming within the provisions of the second section of act concerning fraudulent conveyances. In a case arising under the first section of the act, it is not necessary that the deed in so many words should express that it was in trust to the use of the grantor; but if such is the legal effect of it, as gathered from its language, the court will, as a matter of law, declare that it is void. This seems to be the ground of the distinction between the cases on this subject coming before this court; and they can be reconciled by it. (Goodrich v. Downs, 6 Hill, 440.) We do not regard that there is any conflict between the cases of Brooks v. Wimer, 20 Mo. 507, and Waugh & Corthron v. Milburn, 11 Mo. 369 — one of these cases being under the first and the other under the second section of the act in relation to fraudulent conveyances. In the last of these cases, as there was only a stipulation in the deed that the possession of the property should remain with the grantor, the court did not consider such a privilege a reservation to the use of the grantor, as the statute expressly provided that possession remaining with the grantor should not be a badge of fraud where the conveyance was duly recorded, which was the case in regard to that deed.

When the facts are agreed, it is a question of law whether tbe transaction is fraudulent. But a very material fact, and the most important one, is omitted in the finding, which is the intent with which the conveyance was made. The intent is a fact to be infei’red from all the evidence, and is one exclusively within the province of the jury. If the court below will act as a jury it must respond to that fact, and without it its finding is not complete, and the case is in no situation in which this court can pronounce the law of it.

The judgment is reversed and the cause remanded;

the other judges concur.


author: Richardson, Judge,

text:
    Smith et al., Respondents, v. Montreil et al., Appellants.
    1. Ia the case of an appeal from a justice’s court to the St. Louis land court, the appellants (the defendants) instead of naming in the recognizance each of the plaintiffs, simply acknowledged therein an indebtedness “ to Maria Smith and others, the plaintiffs in this suit.” One of the clauses of the condition of the recognizance was the following : “ Or if, on the trial anew in the land court [the proper appellate court] or the law commissioner’s court, judgment be given against the appellants and they shall satisfy such judgment.” Held, that the recognizance was sufficient.

      Appeal from St. Louis Land Court.

    The following is the recognizance mentioned below in the opinion of the court: “ We, the undersigned, Louis Mon-treil, as principal, and Antoine Fortay, Antoine Pelcher, Joseph -, acknowledge ourselves indebted to Maria Smith and others, the plaintiffs in this suit, in the sum of one hundred dollars, to be void upon condition: Whereas Louis Montreil and Louis Lauvalette have appealed from the judgment [of] Silas W. Barnett, a justice of the peace within and for St. Louis county, in an action between Maria Smith et al., plaintiffs, and Louis Montreil et al., defendants: Now, if on said appeal the judgment of the justice is affirmed, or if, on the trial anew in the land, court or the law commissioner’s court, judgment be given against the appellants and they shall satisfy such' judgment, or if this appeal shall be dismissed and they shall pay the judgment of the justice together with the costs of the appeal, the recognizance shall be void. [Signed],” <fcc.

      Cline & Jamison, for appellants.
    I. The court erred in dismissing the appeal. The recognizance was substantially as required by law. It was not necessary that it should pursue the exact language of the law. (R. C. 1855, p. 972; Strange v. Ellis, 1 Mo. 291.)

      S. H. Gardner, for respondents.
    I. There is nothing showing that there is in existence any such bond as that copied in the record.
    II. If such a bond was actually in existence, it was defective in this, that it did not set forth the names of the obligees as required by statute. (See R. C. 1855, p. 972, § 3.) It was defective also in containing the words “ in the land court or the law commissioner’s court.” Only one court had juristion.
   Richardson, Judge,

delivered the opinion of the court.

Maria Smith and twelve others, as plaintiffs, commenced a joint action for injuries to real property against the defendants before a justice of the peace. The plaintiffs recovered a judgment, from which the defendants prayed an appeal and entered into a recognizance, which in all respects followed the form prescribed by the statute, except that it is made payable to Maria Smith and others, plaintiffs in this suit,” instead of naming each of the plaintiffs; and in the condition it is written, if, on the trial anew in the land court or the law commissioner’s court,” instead of saying, “ if, on the trial anew in the appellate court.” The land court dismissed the appeal because the recognizance was insufficient.

There is no uncertainty as to who are the payees in the recognizance, and there could be no difficulty in declaring on it if there was a breach of any of its conditions; and as the appeal could only be taken to the land court, the words or the law commissioner’s court” may be rejected as sur-plusage. In our opinion the recognizance is sufficient and the motion to dismiss the appeal was improperly sustained. The judgment will be reversed and the cause remanded, and the land court is directed to reinstate the appeal.

The other judges concur.


text:
    Wunsch, Plaintiff in Error, v. Gretel, Defendant in Error.
    1. To maintain an action of forcible entry and detainer, it is not necessary that the plaintiff should prove an entry by the defendant with actual force : there may be a forcible entry in the sense of the statute without the use of violence or of threats.

      Error to St. Louis Land Court.

    The facts' sufficiently appear in the opinion of the court.

      S. H. Gardner, for plaintiff in error.

      H. N. Hart, for defendant in error.
   Richardson, Judge,

delivered the opinion of the court.

The sixteenth section of the first article of the act of 1845 concerning forcible entry and detainer, declares that “ the complainant shall not be compelled to make further proof of the forcible entry or detainer than that the defendant unlawfully entered into and detained the same.” The purpose of the statute is to prevent the intrusion of one person on the lawful possession of another without his consent, and to secure a peaceable possession from being changed without authority of law against the will of the occupant. This section of the act excludes the idea that force is a necessary ingredient to give a right of action; and, though neither violencé nor threats are used, a party may be guilty of forcible entry and detainer. (Warren v. Ritter, 11 Mo. 354; Cathcart v. Walter, 14 Mo. 17; Krevet v. Meyer, 24 Mo. 107.) The court, at the instance of the defendant, instructed the jury that it was “ incumbent on the plaintiff to prove force in getting possession of the premises, or such words and actions used by defendant to the plaintiff as have a natural tendency to excite fear or apprehension of danger to the person. in possession, or he can not recover.” The giving of this instruction and the refusal of those asked by the plaintiff indicate that the case was put to the jury on an improper theory. Whether the plaintiff voluntarily abandoned the possession, or the defendant did any thing towards a disturbance of the plaintiff’s possession, are questions of fact for the jury, about which we intimate no opinion.

The other judges concurring, the judgment will be reversed and the cause remanded.


text:
    Wood, Plaintiff in Error, v. Dalton, Defendant in Error.
    1. To maintain an action of unlawful detainer it is necessary that the plaintiff should have once been in the lawful possession of the premises in eon-troyersy. A vendee can not maintain such an action against his vendor for a refusal to deliver up the premises sold at the time agreed upon.

      Error to St. Louis Land Gowrt.

      H. N. Hart, for plaintiff in error.
    I. The defendant acknowledged plaintiff as his landlord. The offer to pay rent is such an acknowledgment. The fact that plaintiff did not consider the sum offered a fair rent for the premises and therefore refused it, does not change the defendant’s position as the tenant of the plaintiff. (See 26 Term. 192; 17 Wend. 473 ; 10 Mctc. 298.)

      C. Gibson, for defendant in error,
    cited Hatfield v. Wallace, 7 Mo. 113; Holland v. Reed, 11 Mo. 605.
   Richardson, Judge,

delivered the opinion of the court.

This is a proceeding under the statute for unlawful detainer commenced the 24th April, 1856. It was proved that the defendant by deed, dated the first and acknowledged on the fifth day of January, 1856, conveyed the premises to the plaintiff, and at the time of the acknowledgment of the deed agreed to give possession on the first day of March following, but that he had continued in possession though duly notified and required, before suit, to surrender the premises. It was also shown that about the 1st of July, 1856, the defendant tendered to Darrah & Pomeroy, for the plaintiff, one hundred and fifty dollars, which he said he owed the plaintiff as rent for the premises, but they refused to accept it. The court instructed the jury that the plaintiff could not recover, as he had failed to show that he had ever been in possession of the property.

It has often been decided by this court that the act of 1845 concerning forcible entry and detainer, and similar statutes on the same subject that precede it, contemplate a case in which the plaintiff has once been in the lawful possession of the premises. (Blount & Baker v. Winright, 7 Mo. 50; Hatfield v. Wallace, id. 112; Holland v. Reed, 11 id. 605; Picot v. Masterson, 12 id. 308.) The 36th and 37th sections of the revised statutes of 1855 (R. C. 1855, p. 794) have introduced material changes in the law as it formerly existed, but they do not affect the question in this case, and do not permit the vendee to maintain this summary action against his vendor.

The evidence that the defendant tendered rent is competent to prove that he promised to pay it for the time he occupied the property, but it can not overcome the direct proof that the plaintiff was never in possession. The judgment is affirmed;

the other judges concurring.


text:
    Edgell, Respondent, v. Sigerson, Appellant.
    1. A. in a certain snit for the recovery of instalments of interest alleged to be due on a promissory note, wherein B., the maker, set up that the said note had been fraudulently altered so as to make interest payable from date, recovered judgment. Held, that said judgment was conclusive, as against the maker, as to the question of fraudulent alteration, in a subsequent suit on the note itself.

      Appeal from St. Louis Court of Common Pleas.

    This case has heretofore been before this court. (See report of decision 20 Mo. 494.)
    This was an action on the following promissory note: “ 14,138.50. St. Louis, October 1, 1848. Five years after date, I promise to pay to the order of myself four thousand one hundred and thirty-eight five-hundredths dollars, for value received, without defalcation or discount, negotiable and payable at the Bank of the State of Missouri; with interest from date at six per cent, per annum, interest payable annually. [Signed] John Sigerson.”
    The petition stated that in the year 1852 plaintiff had commenced a suit to recover the instalments of interest then due on the above note ; that in said suit defendant pleaded that that portion of the note stating that interest is to be paid annually from date at the rate of six per cent, had been inserted without the knowledge, authority or consent of defendant Sigerson ; that plaintiff in that suit recovered judgment.
    In the present suit defendant admits the execution of the note, but sets up that the same was fraudulently altered, as alleged by defendant in the suit for instalments of interest. Defendant insists that said alteration made the note void. Defendant further alleges in his answer that the judgment rendered against him in the suit for instalments was obtained by fraud.
    At the trial the plaintiff gave the note in evidence, also a transcript of the judgment in the suit for instalments of interest. Testimony was then adduced bearing upon the question whether the interest clause was in the note at the time of its execution and delivery.
    The court, at the instance of the plaintiff, instructed the jury as follows: “1. If the jury believe from the evidence that the plaintiff and Francis W. Peasley were partners at the time the suit was commenced, the record of which has been given in evidence by plaintiff; that the note then belonged to said Edgell, Peasley & Co. ; that the note sued on in this suit is the same to recover the interest specified in which the suit was brought by said Edgell and Peasley against said defendant, the record of which has been read in evidence by plaintiff, then the jury will find for the plaintiff, unless the jury shall find that said judgment was obtained by fraud. 2. The testimony of witnesses as to the making of said note, and what took place at the time of such making, is no evidence that said judgment was obtained by fraud. 3. The jury should find for the plaintiff if they believe from the evidence that the demand sued for in this suit is the same to recover the interest upon which suit was brought against said defendant and a judgment recovered therefor, the record of which has been given in evidence by plaintiff.”
    The court refused the following instruction, asked by defendant: “ 4. If the jury believe from the evidence that the interest clause in the note sued upon was inserted after the same was signed by the defendant and without his knowledge, approval or consent, then the note is void and the plaintiff is not entitled to recover on the same.”
    The jury found a verdict for plaintiff.

      A. M. Gardner, for appellant.

      Shepley, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

The integrity of the note was necessarily and directly hi issue in the suit brought to recover the annual instalments of interest, and the judgment in that case, having been rendered by a court of competent jurisdiction, determined the question as to the alteration of the note, and was conclusive between the same parties in another suit directly involving the same question. (Greenl. Ev. sec. 528; Kingsland v. Spalding, 3 Barb. Ch. R. 341; Chase v. Walker, 26 Maine, 555; Perkins v. Walker, 19 Verm. 144.)

The only matter then really in issue in this cause was whether the judgment had been obtained by fraud; and on this point the defendant offered no testimony. The only evidence he introduced bore on the issue distinctly made and decided in the first suit. The instructions asked by the plaintiff were properly given, and the one asked by the defendant was properly refused. The judgment will be affirmed;

the other judges concurring.


text:
    Benoist & Donnelly, Respondents, v. Sylvester et al., Appellants.
    1. A court ought, on a proper motion for that purpose, direct a jury to find a verdict in favor of one of several defendants if the facts adduced in evidence be such that the jury would not be authorized to find a verdict against him.
    2. The practice in this state has been to entertain such a motion at the close of the case on the part of the plaintiff, before the opening of the defence; the better rule would seem to be that the court may, in its discretion, refuse to entertain such a motion at the close of the plaintiff’s case, if it is probable that the evidence will be adduced before the whole evidence in the cause is closed that would authorize a verdict against the defendant whose acquittal is sought.

      Appeal from St. Louis Court of Common Pleas.

    The facts sufficiently appear in the opinion of the court.

      A. J. P. Garesché, for appellants.
    I. There was no evidence whatever against Shinkle and Jackson. The court ought to have directed the jury to retire and find a verdict for each of them, as requested at the close of plaintiff’s case. (See Bald. C. C. 533 ; 22 Mo. 351; 8 Mo. 26; Wood v. Mathias, 21 Mo. 308 ; Young v. Croughton, 17 Mo. 367 ; Brown v. Lewis, 25 Mo. 335.) They were made parties to stifle their evidence.
    II. Chenowith was a competent witness. (Launier v. Francis, 23 Mo. 181; Sherwood’s Adm’r v. Hill, 25 Mo. 391; Smith R. 419, 823.)
    III. The several defendants, and particularly Shinkle and Jackson, should have been permitted to testify in behalf of their co-defendants. (Block v. Chase, 15 Mo. 344; Sess. Acts, 1857, 180 ; 9 IIow. Prac. 385 ; Whitaker’s Practice, p. 366.)

      B. A. Hill, for respondents.
    I. The defendants were all properly made parties. The defendants were not entitled to any severance in this cause. The defendants had given a delivery bond jointly. The judgment rendered must be an entirety. The court committed no error in overruling the motions to direct the jury to pass upon the cases of each of the defendants separately. It is sufficient answer to all that may be urged to say that the jury found all the defendants guilty. If the court had any discretion in such an action as this, it was soundly exercised. The court also decided correctly in excluding the testimony of Chenowith. The suit was defended for the immediate benefit of Chenowith & Co. (15 Barb. 322; Catlin v. Hansen, 1 Duer, 309 ; 2 Duer, 419 ; 1 Code Rep. N. S. 213 ; 2 Kernan, 374; 3 Kernan, 266.) There was no error in the instructions.
   Richardson, Judge,

delivered the opinion of the court.

This is an action of replevin for twenty-five barrels castor oil, which the plaintiffs averred they were entitled to the possession of, by virtue of a special property therein, and that the same was in the possession of the defendants and unlawfully detained by them. The defendants answered separately. Sylvester denied all the material allegations in the petition, and also denied that bis co-defendants had any possession of the property, but admitted that the oil was in his possession, and that he lawfully detained it as the agent of J. S. Chenowith & Co., of Cincinnati, who were the owners of it. The other defendants likewise denied the averments in the petition, or thatrihey had possession, and disclaimed any interest whatever in the property in dispute.

At the conclusion of the evidence on the part of the plaintiffs the defendants asked that the jury might be permitted to retire to consider their verdict in respect to Sylvester, which the court refused to permit; and the like motions were made separately in respect to each of the other defendants, which were also denied.

The motion was properly overruled as to Sylvester, for he admitted himself in possession, and the main controversy was with him as to the right of possession. At that stage of the trial the only evidence implicating Jackson was, that he was Sylvester’s clerk, and during his employer’s absence the oil was demanded of him. But as to Shinkle, he denied that he had possession, and disclaimed any interest, and there was not a particle of evidence to show that he had possession of the property directly or indirectly at the commencement of the suit, or that he really had or claimed any interest in it. The defendants then proceeded with the case on their part, and began by reading the deposition of Donnelly, one of the plaintiffs, which had been previously taken and filed; and if there was any doubt before as to the propriety of making Jackson a defendant, it was removed by the statement of the deponent that he had demanded the oil of him, and that he refused to give it up, saying “ that he had the oil and intended to keep it.” And as to Shinkle, the first reading of the deposition left a doubt whether he, too, was not properly joined in the action; but on a careful re-examination of it, we think it fails to show a single fact to connect him with the possession or detention of the property.

Generally any one in possession of goods may be made defendant in actions of replevin, for the owner is not bound to ascertain whether the person who detains his property, is acting for himself or in subordination to another. So if goods are taken by A. at the command of B., the replevin may be against both or either. (Morris on Repl. 73.) The motion then was properly overruled as to Jackson, but the court ought to have directed an acquittal as to Shinkle.

Greenleaf, following the rule laid down in Gilbert, says, that the court will not direct the acquittal of one defendant in order that he may testify for the others “ if there be any evidence against him, though in the judge’s opinion not -enough for his conviction.” (Greenl. Ev. § 358.) In this state, under our system of practice, where the plaintiff'incurs practically no risk in misjoining defendants, even in actions ex contractu, and the temptation is so great to turn witnesses into defendants, the old rule ought to be relaxed, and the true test, we think, is laid down in McMartin v. Taylor, 2 Barb., S. C., 356, that the court ought to direct the jury to acquit a defendant on a proper motion for that purpose, if the facts be such that the jury would not be authorized to find a verdict against hin&; or if the court would set it aside if he was sued alone.

The cases present a diversity as to the time when the ac quittal should take place, viz., whether at the conclusion of the case on the plaintiff’s part, or at some subsequent stage. In Child v. Chamberlain, 6 Carr. & Pay. 216, Park, justice, said that it was the unanimous opinion of all the judges that the motion should be made at the close of the plaintiff’s case, before any part of the defendant’s evidence is gone into. But in the later case of Sowell v. Champion, 6 Adol. & Ellis, 415, Lord Denman said, “ the application to a judge, in the cowse of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discretion, and that discretion is to be regulated not merely by the fact that at the close of the plaintiff’s case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. There is so palpable a failure of justice when the evidence for the defence discloses a case against a defendant prematurely acquitted, that such acquittal ought never to take place but where there is the strongest reason to believe that such a consequence can not follow.” (See also 1 Phil. Ev. 73; 1 Greenl. Ev. § 358.) There is good sense in the observations of Lord Denman, for it sometimes happens that the complicity of a defendant sought to be discharged at the close of the plaintiff’s case is abundantly established by the defendant’s own testimony, and the court would be exceedingly embarrassed, after directing the acquittal of a defendant, if it should turn out by the proof afterwards given that he was more guilty than the others. It is believed, however, that the practice in this state has generally been as it is stated by Mr. Justice Park, and, though we think the other rule is the safest, the defendants in this case ought not to be prejudiced for failing to make a second motion after all the evidence was in, inasmuch as the court did not overrule the first because it was premature. >

Without undertaking now to construe the supplementary act concerning witnessos, passed in February, 1857 (Sess. Acts, 1857, p. 181), and to state the cases in which a party may be examined as a witness in behalf of his co-plaintiff or of a co-defendant, it is sufficient to say that in an action of replevin a separate verdict or judgment is not absolutely necessary from the nature of the suit, nor was any matter set up in this case which went merely to the personal defence of one defendant and not to that of the others, as for instance infancy, bankruptcy, or coverture; and there is nothing in this law which authorized either of the defendants to testify for the others.

The examination of Chenowith on his voir dire showed that the suit was defended for his immediate benefit, and he was properly excluded as a witness.

The court erred in not directing the jury, before the case was finally submitted, to acquit Shinkle, and on that account the judgment will be reversed and the cause remanded;

the other judges concur.


author: Napton, Judge,

text:
    Rose & Wife, Appellants, v. McHose’s Executors, Respondents.
    1. One J. McII. died leaving Mm surviving Ms wife, and five children of ages varying from seven to nineteen years. His property consisted exclusively of personal property. His will is as follows : “ In the name of God, Amen. I, I. McII., of, &c., being of sound mind, &c., do, therefore, make, ordain, publish and declare this to he my last will and testament — that is to say, First, After all my debts are paid and discharged, the residue of my estate, real, personal and mixed, I give and bequeath and dispose of as follows, to-wit, viz.: All my estate, real, personal and mixed, I give to my beloved wife Mary Ann, and all money that may be in possession or at interest, or in any situation whatsoever at the period of my demise, including any and all dues to me then owing, shall to the said wife, Mary Ann, be to her as my last will and testament, reserving to her the right of disposal in the manner following, to-wit, viz.: Provided, however, that if my aforesaid wife Mary Ann shall of her own will and free accord unite herself in the bonds of matrimony to another person, then the full meaning of this will, as above devised, shall he transferred to the surviving children of the testator according to law, reserving to the said Mary Ann her right of dower according to said law. And further, that if my wife, the said Mary Ann, shall remain single during the minority of our children, then she shall at their maturity give to the said children, who may then be living, their right, title and interest to, and in, for any property belonging to my estate, real, personal and mixed, reserving to herself the right of dower hereinbefore stated. And further, that the division of the said property then existing shall he made equal among my children, share and share to each alike, without distinction, preferment or feeling. And further, that in order to secure to my said wife Mary Ann the furtherance of my will and testament, and to my children their right, title and interest hereby bequeathed to them out of my property, I hereby appoint and constitute as the executors of this, my last will and testament,” &c.

      Held, that the widow did not become invested, by virtue of the will, with the power to dispose at pleasure of the property bequeathed; that those portions thereof to which the children would become ultimately entitled she held as trustee for them; that, although she might, entirely in accordance with the directions of the will and in conformity to the trust confided in her, pay over to each child, on its arriving at majority, its share of the property bequeathed, yet she could not, under all circumstances, be compelled so to pay over ; that such payment, if it could be enforced at all, must be enforced through the intervention of a court of general equity jurisdiction.

      Appeal from, St. Louis Circuit Court.

    On the final settlement of the executors of Isaac McHose, his eldest child, Mrs. Margaret Rose, and her husband, filed their petition for the distribution to them of one-sixth of the estate (consisting entirely of money and notes) of the decedent. The probate refused this prayer, and Rose and wife appealed to the circuit court. The facts were there agreed to be as follows, viz.: Isaac McHose, late of the county of St. Louis, died therein on or about July 29, 1852, having made his will, which was duly admitted to probate and record. The executors therein named were duly qualified as such. At the time of his death, the testator left a widow, named Mary Ann, and five children, to-wit, Margaret, one of the petitioners, married to Edward Rose, who was, when this petition was filed, between twenty-one and twenty-two years of age; Louisa, who was then about nineteen years old; Abraham, about seventeen years; Elizabeth, about fifteen years, and Joseph, about ten; all of which children, as also the said widow, are still living. The widow has remained unmarried. A certified copy of the will is part of this case. At the December term, 1855, of the St. Louis probate court, and before the filing of this petition, said executors made final settlement, showing a balance in their hands of $22,629.50. The widow had received $2,618.65, so that the whole estate, which consisted altogether of personalty, amounted to $25,248.15. The widow has done no act indicating her option in case of a division to receive one-third of the personalty or a child’s part thereof; but has always hitherto denied that the time for a division is yet come. Isaac McHose’s will was in the following words: “In the name of God, Amen. I, Isaac McHose, of the city of St. Louis, county of St. Louis, and State of Missouri, being of sound mind and memory, and considering the uncertainty of life in its frail and transitory course, do therefore make, ordain, publish and declare this to be my last will and testar ment — that is to say, First, After all my lawful debts are paid and discharged, the residue of my estate, real, personal and mixed, I give, bequeath and dispose of as follows, to-wit, viz.: All my estate, real, personal and mixed, I give to my beloved wife, Mary Ann and all money that may be in possession, or at interest, or in any situation whatsoever ever at the period of my demise, including any and all dues to me then owing, shall to the said wife, Mary Ann, be to her as my last will and testament; reserving to her the right of disposal in the manner following, to-wit, viz.: Provided, however, that if my aforesaid wife Mary Ann shall of her own will and free accord unite herself in the bonds of matrimony to another person, then the full meaning of this will as above devised shall be transferred to the surviving children of the testator according to law, reserving to the said Mary Ann her right of dower according to said law. And further, that if my said wife, the said Mary Ann, shall remain single during the minority of our children, then she shall at their maturity give to the said children, who may then be living, their right, title and interest to, and in, for any property belonging to my estate, real, personal and mixed, reserving to herself the right of dower hereinbefore stated. And further, that the division of said property then existing shall be made equal among my children, share and share to each alike, without distinction, preferment or feeling. And further, that in order to secure my said wife Mary Ann the furtherance of my will and testament, and to my children their right, title and interest hereby bequeathed to them out of my property, I hereby appoint and constitute as the executors of this, my last will and testament, (revoking all others by me made,) Mathias Steitz and Bartholomew Bice, both of the city and county of St. Louis, and state of Missouri, desiring them to carry out, as far as possible and practicable, the wishes expressed by me in this, my last will and testament. In witness whereof, I have hereunto subscribed my name and affixed my seal this-day of January, Anno Domini one thousand eight hundred and fifty-two (1852). Isaac McHose (seal).”
    Upon the case above stated, the court was asked by the petitioners, Edward Bose and wife, to declare the law to be that they were entitled to a child’s share of said estate of the testator, that is to say, to one-sixth part thereof, and make an order accordingly, which the court refused to do. The court declared the law to be that application for a division of the estate of Isaac McHose was premature ; that no division was compellable until the youngest child of said McHose should arrive at full age, or until Mary Ann McHose should marry, whichever event should first happen; that in the mean time said Mary Ann McHose was entitled to the possession of said estate.

      T. Polk, for appellants.
    I. By the proper construction of the will of McHose, should his widow marry a second time, all the .estate would pass over to the children, excepting such portion as the law would give to the widow as dower. If she remains single she will still have her dower in her own right; and will hold possession of all the residue as trustee for the children until it is to be handed over by her to the children, as provided in the will. The widow has remained single ; and by the will his or her several portions are to be handed over to each one of the children when they shall severally attain their majority. This allotment is not to be deferred until the youngest child attains its majority. (See Overton and wife v. Davy’s ex’r, 20 Mo. 273.)

      T. T. Gantt, for respondent.
    I. First, the will of McHose, in the event of marriage by Mrs. McHose during the minority of the children, determines and defeats the estate given to her, and confines and remits her in that event to her right of dower. Secondly, the will makes provision for the children of the testator, and gives the whole of the property to Mrs. McHose during a designated period, with power of disposal. Thirdly, the will provides that if Mrs. McHose should remain single, then, upon the maturity of the children (by which is meant the arrival of the youngest at the full age of twenty-one years), all the property of said testator “ then existing” (that is, remaining undisposed of) is to be divided equally among his children, share and share alike, subject to the dower of the widow. Only one division was contemplated, not as many as there are children.
   Napton, Judge,

delivered the opinion of the court.

It is extremely difficult to give a satisfactory interpretation of the will of McHose. This difficulty does not proceed from the use of ambiguous terms, but from the very peculiar style in which the testator chose to express his ideas, and the indistinctness of the ideas themselves. In some cases it is plain that he does not mean what lie says, and his intentions, as indicated by his words, must be totally disregarded in order to effectuate another intention more prominent in his mind. All that we can do is to give effect to the main and leading purposes of the testator, not pretending that the whole will can be reconciled throughout, and all its details be executed.

The interest which is given by this will to the widow and children of the testator is, upon the whole, clear enough, and we think it is precisely what the law would have given them, neither more and no less. We do not adopt the interpretation which the counsel for the widow has insisted on, that by the will the widow is owner of the entire estate, with power to dispose of it at her pleasure, and subject to a division with her children of what remains at her second marriage or upon her youngest child’s attaining majority. Such a construction we regard as totally at variance with a leading and prominent object of the testator manifested throughout the will. When he speaks of the share of his children, he speaks of it as “ their rights, title and interest — as something fixed and determinate, not subject to the will of any one else, nor liable to be defeated by contingencies. It is true that some expressions in the will have to be disregarded in giving this construction to it. He speaks of the division, to which he refers upon the happening of certain events, as confined to his children “then living;” but he evidently re-refers to a dying without issue, in which event the provision was unnecessary. If the case had been put to the testator, of one of his daughters marrying and dying before twenty-one, leaving issue, and he had been asked whether he designed to cut off his grand-child, no doubt can be entertained that his answer would have been in the negative. The testator did not contemplate such a case; it was not in his mind, and we must disregard the words “then living” in order to carry out his real purposes.

In construing this will we have not thought it important that very great stress should be laid upon any particular expression or detached clause. In some of them it will be seen that the testator has a very confused idea, or none at all, or means the very reverse of what he says. He speaks of his wife marrying “ of her own free will,” as though he contemplated the contingency of her being compelled to marry. After beginning with an apparently absolute devise of his entire estate to his wife, he proceeds to “ reserve to her the right of disposal in the manner following,” and then the testator’s mind appears to wander to another subject.

Notwithstanding the apparent absurdities and contradictions and obscurities about this will, we feel no doubt about the main results. The principal object in view is to provide for his wife and children, and for this purpose he fixes their relative interests in all contingencies at just what the law fixes it. Up to the period of a second marriage, if such an event should occur, and up to the period of the arrival to full age of his youngest child, he gives his wife, in addition to her fixed share, the use and control over the whole estate, with power to manage it, as he himself if living would, for the maintenance of herself and children, and for their education and advancement. So far as the interest of the children is concerned, the wife is but a trustee, and is only authorized to use the fund entrusted to her care for such purposes as fall within the object in view by the testator. That it would be in accordance with the spirit and meaning of the trust to advance to any of the children, upon marriage or upon majority, such share of the estate as would ultimately be coming to such child, or such portion of it as would not impair the capacity of the mother to keep up the home establishment, is also very clear.

The question in this case is whether the widow is compelled to pay over to the oldest child, on arriving of age, the share of the estate to which, beyond doubt, she is entitled ultimately. That such a payment, by way of advancement, would be in the power of the mother, and would be entirely in accordance with the directions of the will, and in conformity to the trust confided to her, we have already declared ; but we have been very much embarrassed to determine whether the rights to this share is a positive one, under the will, and to be enforced without regard to circumstances. The question is not now whether a court of chancery would see to a reasonable performance of the trust confided to Mrs. McHoso by the will of her husband, but whether the will gives an absolute right to each child, on attaining majority, to the possession of the property secured to that child by the will. Either construction is entirely consistent with the provision which gives the widow the control and use of the property until the youngest child attains majority. By requiring the widow to advance each child’s portion upon attaining majority, she would still retain the use of her own portion and all the portions of the children not advanced, and the estate would only be diminished in proportion as the expenses of the family would be by the separation of each child as he or she became of age. This construction is quite consistent with some of the language employed by the testator, but is difficult to be reconciled with other portions. He declared that if his wife remained single during the minority of his children then she shall at their maturity” give the children their shares. The word “ then” may be understood, not as indicating the point of time when the payment was to be made, for that is fixed at their maturity,” but as simply equivalent to “ in that event.” The words “ at their maturity” very strongly favor the conclusion contended for by the plaintiff, since it may be very naturally understood to mean the maturity of each child, and must be very much distorted to mean eleven years after the oldest attains her majority. But the sentence does not end here; he proceeds to direct his wife to give at their maturity to his children “ who may then bo living and he further says, that “ the division of the said property then existing shall be made equal,” &c. These latter expressions are scarcely reconcilable with the idea of giving to each child as the age of majority is attained, but appear to look to a single division upon reaching a period when some of the children might be living. The words “ then existing” contemplate the possibility of a diminution of the estate by reason of the necessary expenditure in maintaining, educating and advancing the children, and keeping up the domestic establishment; but this is not conclusive as to the point of time when the distribution is to be made. Upon' the whole we are not satisfied that it was the testator’s intention that his widow should be compelled to pay over each child’s portion as that child became of age, although there are many expressions in the will which would lead to that conclusion. The prevailing idea of the testator seems to have been of a single division to be made at one time, and of course that could only be made when all the children were of age. We have no doubt of the power of the widow to pay over portions to her children as they marry or attain their majorities, and we by no means intend to say that, under certain circumstances, a court of chancery would not compel such payments. She is a trustee for her children, not accountable to the probate court for the manner in which the estate is managed, but still not beyond the reach of a court having general equity jurisdiction. Wc do not perceive any reason why Mrs. Mctlose’s share of the property, or such proportion of it as would not impair the means of her mother in keeping up the home establishment, has not been paid. There may be good reasons. It might be proper to secure her separate enjoyment of the property so that it would not be liable to the debts or contracts of the husband. We confine our opinion to the case now presented, and we go no further than to say, that the widow is not compellable to pay out the share of the plaintiff under the will, at this time, without regard to circumstances.

The other judges concurring, the judgment is affirmed.


text:
    Reese, Appellant, v. Chilton, Respondent.
    1. A merchant dealing with a wife living apart and separated from her husband must take notice of such separation; he can not recover of the husband for any supplies furnished to the wife unless the separation be on account of the misconduct of the husband, or by the mutual consent of husband and wife without an adequate allowance for her support.
    2. If the wife leave her husband without cause, he will not become liable, by receiving her back, for necessaries supplied to her during her unlawful absence.

      Appeal from Si. Louis Law Commissioner’’s Court.

    The plaintiff asked the court to instruct the jury as follows : “ 1. If the jury believe from the evidence that Chil-ton and his wife separated and that during said separation her husband made no provision for her maintenance, and that the claim in controversy was for necessaries suitable to her condition in life, they will find for the defendant. 2. That if the jury believe from the evidence that Chilton and his wife separated by consent, without any provision for her maintenance, then Chilton is liable for her necessaries, and he sends credit with her to that extent. 3. That if the jury believe from the evidence that, since the claim in controversy accrued, Chilton has received his wife back again and that they are now living together as man and wife, and that plaintiff’s account is for necessaries furnished her during the separation, they will find for the plaintiff. 4. That if the jury believe from the evidence that Chilton received his wife back, then it is immaterial whether she left with or without a cause, and he is bound for all necessaries furnished her suitable to ber condition in life. 5. That it is competent for a party to prove any fact in tlie canse by circumstances, and the jury have a right to take into consideration all the facts and circumstances of the case, and may draw such inferences as in their judgment the facts and circumstances warrant. 6. If the jury believe from the evidence that Mrs. Chilton received such treatment from her husband as to afford her a reasonable cause to depart from his home, then he is bound by all her contracts for necessaries suitable to her circumstances and those of the husband.”
    Of these instructions the court refused all except the fifth. The court gave the following instructions at the instance of defendant: “ 1. The law will not permit a man to board or harbor- the wife of another against his will, unless it be to protect her from some wrong or injury perpetrated or about to be perpetrated upon her by her husband ; and before the plaintiff can recover in this cause he must satisfy the jury by competent evidence that the conduct of the defendant was such towards his wife as to drive her from his house. 2. If the jury shall believe from the evidence that the boarding and articles charged in the plaintiff’s account were furnished by the plaintiff to the defendant’s wife at a time when she was living separate and apart from her husband, the defendant, and that the defendant had a house — a home — for her and supplied her there with necessaries suitable to her condition; that she voluntarily left the house or home of her husband without his consent, and that he did not either by ill usage, indecency of behavior, or severity, compel her to leave his house, and that the plaintiff knew they were so living separate and apart, they will find for the defendant. 3. The jury are the sole judges of the credibility of testimony; but if you believe that any witness in the cause has sworn wil-fully and corruptly false to any material matter in this cause, you are at liberty to reject the whole of the testimony of such witness.”
    Bay, for appellant.
    I. The court erred in refusing to give the 1st, 2d, 3d, 4th and 6th instructions asked by plaintiff, and in giving those asked by defendant.

      Cline & Jamison, for respondent.
    I. The case was fairly put to the jury by the instructions given. (See Ruther v. Cox, 11 Mo. 347.)
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff sued the defendant for boarding his wife and for necessaries furnished to her during a temporary separation from her husband. The defendant had a dwelling-house at the time his wife left him, and the plaintiff kn.ew, when she came to his house, that she had separated from her husband. It can not be inferred from the evidence whether the separation -was by the mutual consent of the husband and wife or was brought about by any fault of the husband, and the bare question is presented whether the husband is liable for necessaries furnished to his wife during their separation without any explanation of the circumstances that led to it.

The law presumes the husband’s assent to contracts made by the wife for necessaries suitable to his degree and estate from the fact of cohabitation; (Rutherford v. Cox, 11 Mo. 852;) but when that ceases the tradesman is bound at his peril to take notice of the separation, (Porter v. Bobb, 25 Mo. 36,) and he can not recover of the husband for any supplies furnished to the wife xxnless the separation was on accoxxnt of the misconduct of the husband, _ or was by the mutual consent of the husband and wife without any ad-eqxxate allowance for her support; (2 Smith’s Lead. Cases, 374;) and if the wife leaves her husband without cause, he will not become liable by receiving her back for necessaries sxxpplied to her during her unlawful absence. (Williams v. Pierce, 3 Strob. 490.)

The first, third and fourth instrxictions were properly re-fxised becaxxse they did not contain correct propositions of law, and the second and sixth were refused becaxxse they were not wai-ranted by the evidence. The judgment will be affinned ;

the other judges concurring.


text:
    Williams, Defendant in Error, v. Bower, Plaintiff in Error.
    1. Justices of the peace have no jurisdiction except that conferred upon them by statute.
    2. A summons issued by a justice of the peace and made returnable in a less time than the law permits — as if, in St. Louis county, it be made returnable to a day less than fifteen days after the date thereof — is void; no appearance by moving to set aside a judgment by default or to dismiss the suit would cure the defect in the summons.

      Error to St. Louis Law Commissioner’s Court.

    Gillespie, for plaintiff in error.
    I. The writs issued by the justice were nullities, being made returnable in nine days after their date, instead of in not less than fifteen days. (See Sess. Acts, 1847, p. 87, \ 1.) The act of 1847 is still in force. (R. C. 1855, p. 1027, § 28.) There was no such appearance in the cause as would preclude the defendant from objecting to the irregularity of the summons. The cases cited by counsel for the defendant in error are inapplicable. They do not touch the point in controversy. (See Sanders y. Rains, 10 Mo. 770.) The justice had no authority to consolidate the suits.

      McDonald & Grammer, for defendant in error.
    I. The justice did not err in consolidating the suits.
    II. These suits being actions in which justices have not concurrent jurisdiction with the circuit court, only six days’ notice was required. (R. C. 1855, p. 932, § 19.) But it makes no difference, in this case, whether the original summons was made returnable in six days or in fifteen days, for, the defendant having appeared to the action in the law commissioner’s court, the whole cause was to be tried “ anew, without regarding any error, defect or other imperfection in the proceedings of the justice.” (R. C. 1855, p. 974, § 13; Matlock v. King, 23 Mo. 400 ; Burch v. Weismain, 20 Mo. 569.) An appearance and motion to dismiss puts the party so appearing in court for all purposes. (Barnett v. Lynch, 3 Mo. 369; Whiting v. Budd, 5 Mo. 443; 8 Mo. 572; Ferris v. Hurt, 20 Mo. 464 : Withers v. Bogers, 24 Mo. 340.)
   Richardson, Judge,

delivered the opinion of the court.

The plaintiff commenced two suits on the 23 d of May, 1857, before a justice of the peace of St. Louis county, which were afterwards consolidated. The writs were made returnable the first day of June, and on the return day, the defendant failing to appear, judgment by default was rendered. In due time the defendant appeared before the justice and moved to set aside the default, but the motion was overruled and the case was then taken by appeal to the law commissioner’s' court. In that court the defendant moved to dismiss the suit because the writs were defective, but the motion was denied and another default taken, on which final judgment was rendered, which the court also refused on a proper motion to set aside.

By the local act of 1847 to regulate the practice in justices’ courts in St. Louis county, (Sess. Acts, 1847, p. 87,) a summons issued by a justice is made returnable to some day not more than sixty nor less than fifteen days after the date thereof, and the return day is made the trial day of the cause. This act was continued in force at the last revising session. (R. C. 1855, p. 1027, § 23.) The general law regulating justices’ courts requires every justice of the peace to appoint a day in every two months for the return of all summons issued by him, and every summons issued is made returnable on such day.

Justices of the peace have no original jurisdiction, but derive their authority from the statute, and, in this county at least, where in the matter of issuing summons and the return thereof they act under a special law, they ought to respect it. If they have the right to abridge the time from fifteen to nine days, no reason is perceived why they may not reduce it to one day or to an hour, and parties who become the victims of judgments rendered on such process could obtain no redress by appeal if the appearance simply to a motion to dismiss the proceeding is deemed sufficient to cure all defects in the summons. It was decided in this court in Sanders v. Rains, 10 Mo. 770, in an action of ejectment, that a summons issued by a justice of the peace made returnable in a less time than the law permits is void. There is a conservatism in all courts to uphold the validity of judicial proceedings when called collaterally into question, and to sustain titles acquired under them, and the reasons that influenced that decision operate with greater force to sustain the objection taken to the summons in this case at a proper time and in a direct proceeding. The marked difference between courts of original and limited jurisdiction is sufficient to show without discussion that the cases to which we have been referred by the plaintiff’s counsel are not in point to the only question in this case.

The summons was illegal and the court erred in overruling the motion to dismiss, for which reason the judgment will be reversed and the suit dismissed;

the other judges concur.


text:
    The State, Respondent, v. Locke, Appellant.
    1. If a new trial bo sought on the ground of newly discovered evidence, it ought to appear not only that the evidence so discovered is material, but that it is of such a character that it would, if introduced, probably produce a different result.

      Appeal from St. Louis Criminal Court.

      Cline & Jamison, for appellant.

      C. G. Mauro, (circuit attorney,) for the State.
   Richardson, Judge,

delivered the opinion of the court.

The only point made in this court for the reversal of the judgment is the overruling of the motion for a-new trial on the ground of newly discovered evidence.

The defendant was indicted and convicted for passing counterfeit money. One witness testified that the defendant passed a counterfeit bill on the Bank of Belleville on a Saturday night, in the month of August, 1856. Another stated that he passed a similar bill on a Saturday night, in September, and a third testified that he offered to pass a like bill on a Sunday morning, in September, when he was arrested.

The affidavits filed in support of the motion state that the defendant came to a house on Second street, in St. Louis, on the evening of the 9th of August, 1856, and remained there all night. None of the witnesses stated that the offence was committed on the 9th of August, and it is not perceived that such evidence could have had any effect on the trial. If new evidence is discovered, to authorize a new trial it ought to appear not only that it is material, but that it would probably produce a different result. (3 Graham & Waterman New Trials, 1041.)

All the judges concurring, the judgment will be affirmed.