Linderman v. Edson

1. A justice of the peace certified a transcript as follows : “ I certify the above and foregoing to be a full and complete transcript of the above entitled cause now of record on docket of David W. Doak, deceased, late justice of the peace within and for St. Ferdinand township, in St. Louis county. [Signed] S. H., Justice of the Peace.” Held, that the justice so certifying would be presumed to be in the lawful possession of the docket of the deceased justice. 2. A. sued B, and C. in a justice's court, and obtained judgment; execution issued and was returned “ mida Iona” as to one of the defendants, but whether as to B. or C. did not appear; nor did it appear against which of said defendants said execution issued, nor whether it issued against both defendants. A transcript of said judgment was filed in the Circuit Court, and an execution was issued thereon, and real estate belonging to B. was sold at a sheriff’s sale thereunder. Held, that the purchaser at sheriff’s sale acquired no title.

Error to St. Louis Land Court. This was a suit in the nature of an action of ejectment brought by the plaintiffs as heirs of Henry Linderman, against the heirs of Homer Edson, to recover possession of a tract of fifty arpens of land in the county of St. Louis. The defendants set up title in themselves. Taylor Johnson is the common source of title. In support of their title the plaintiffs introduced a transcript from the clerk’s office of the Circuit Court of St. Louis county. Prom this transcript it appeared that on the 21st of April, 1845, there was filed in that office the following transcript: “ William Jacob Miers & Co. v. Taylor Johnson and H. W. Carter. Suit on a joint promissory note for $82. Said note bears date on the 4th day of November, A. D. 1842; and made payable nine months after date. Summons issued the 5th February ; returned executed on the 17th. On the return day the defendant appears; stays proceedings until the first day of June thereafter. Now on the first day of June, being the day of trial, defendants comes not, but makes default. Judgment for plaintiffs for amount of said note, interest and costs of suit by default. Debt, $82; interest, 60 cents; justice’s fees, 66 cents ; constable’s fees, 60 cents. Fi. fa. issued 3d day of June, 1844 ; alias fi. fa. issued on 31st of October, 1844; returned ‘ no goods’ of the within defendant found whereof to levy. [Signed] David W. Doak, J. P.” “ I certify the above and foregoing to be a full and complete transcript of the above entitled cause now of record on docket of David W. Doake, deceased, late justice of the peace within and for St. Ferdinand township, in St. Louis county. [Signed] Samuel Henley, Justice of the Peace.” It appeared also that on the 21st of April, 1845, execution issued on said transcript from the clerk’s office of said Circuit Court; that the tract of land in controversy was levied on as the property of the said Taylor Johnson; that the same was sold by the sheriff to John Smith and Henry Wortman, June 16,1846 ; that the sheriff executed a deed to the purchasers, who conveyed the same to Henry Linderman, plaintiff’s ancestor. Defendants claimed by virtue of a deed from Taylor Johnson to Homer Edson, their ancestor, dated May 20 th, 1845. The cause was submitted to the court upon the above facts (which were agreed upon by the parties) under an agreement that if the court should be of opinion that the evidence adduced is admissible and competent, and that plaintiffs ought to recover, they (plaintiffs) shall have judgment for possession of the premises. The court gave judgment for plaintiffs. I. Where a party claims under a sheriff’s deed, he must show a judgment, and if it is a justice’s judgment, he must further show that an execution had been issued by the justice and a constable’s return of nulla bona. (Coonce v. Munday, 3 Mo. 374; Murray v. Laften, 15 Mo. 621.) In this case, the only scintilla of evidence that an execution was issued by the justice is found in the transcript of the docket filed in the clerk’s office, where it is stated, afi. fa. issued June 3, 1844; alias fi. fa. issued October 31st, 1844; returned, ‘ no goods of the within defendcmt found whereof to levy.’ ” It does not appear against which of the defendants it was issued, nor when returnable, nor when returned, nor to whom directed or delivered; whether to a constable or some other officer, or to no officer at all; nor by whom the return was made. Can the court guess that every thing was regulai-ly done from this slight memorandum of the justice ? Besides, an execution issued by a justice and not returnable according to law is void. (Stevens v. Chouteau, 11 Mo. 382.) The memorandum on the justice’s docket of the return of the execution is not evidence, because he was not required by law to make it. It being established by this court that an execution must be issued by the justice and returned by the constable nulla bona, and that an execution not returnable according to law is void, it follows that a party claiming title under an execution from the Circuit Court on a justice’s judgment, must show a valid execution issued by the justice, and a proper return thereof. If this is not shown, the party’s title is defective, for the sale is void. II. Was the judgment of the justice rendered against both of the defendants, or only against one of them ? and if so, which one ? In the caption of the entry in the justice’s docket, Johnson and Carter are mentioned as defendants; but in all the subsequent entries “ defendamC'’ is mentioned in the singular, except in one unimportant instance; and so in the return of the execution, no goods of the “ within defendant” are found, &c. Thus showing, both in the judgment and in the return, that only one of the nominal defendants was a party to the suit; and if this be so, why not sell the land of Carter as well as that of Johnson ? The docket entry shows the entry in the singular was not a grammatical error, but is according to the truth of the fact that only one of the parties was sued and served with process. - III. Bxxt if the justice’s transcript contained a perfect judgment and a regular execution and return, it was inadmissible evidence, because not properly authenticated. What authority had Justice Henley to certify a transcript of the “ docket of David W. Doak, late justice of tlie peace,” &c. ? The 14th section of the act concerning evidence, (Sess. Acts, 1838-9, p. 43, which has been incorporated in the revised codes of 1845 & 1855, tit. “Evidence,”) provides that the proceedings of a justice out of office may be certified by a justice who has possession of his docket and papers. This is the whole law on the subject. Now what evidence is there that Henley was Doak’s successor or had possession of his docket ? The possession spoken of in the statute is a legal possession, not a mere manual possession, and that legal possession must be in some way proved before a transcript certified by the possessor can be received in evidence. The statute provides how the docket and papers of a justice retiring from office shall be transferred to another justice, so that that other may come into lawful possession thereof. The fact of the transfer then is a fact to be proved when it is attempted to use copies certified by the latter. How the fact is to be proved is not for me to say ; perhaps the justice’s own certificate of the fact would be sufficient. But certainly the mere fact of the justice’s making a certified copy of a record is no evidence that that record is in his lawful custody. cited Mooney v. Williams, 15 Mo. 443; Palmer v. Hunton, 8 Mo. 514.