Bear v. Youngman

19 Mo. App. 41, 1885 Mo. App. LEXIS 172

• Court: Missouri Court of Appeals
• Decided: October 26, 1885
• Status: Published

Opinion

Hall, J.

This was a suit by injunction for the purpose of enjoining the defendant, who was the constable of Morgan township, Mercer county, Missouri, from selling plaintiff’s goods under an execution issued by Jesse Trapp, a justice of the peace of said township, upon a judgment rendered by said justice in favor of C. L. Hart and William Hart, for $46.65 and costs.

The judgment was rendered on the 30th day of November, 1882, the same being Thanksgiving day, under the proclamation of the president of the United States’ and also under proclamation of the governor of the State of Missouri.

Summons was properly served and the only objection to the authority of the defendant, as constable, to seize and sell the goods under the execution, is, that the judgment was rendered on Thanksgiving day. The defendant demurred to the petition for the reason that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court. And on motion of the defendant the injunction was dissolved. The plaintiff has appealed to this court.

I.

Section 2848 of the Revised Statutes provides that “every justice of the peace may hold court for the trial of causes of which he has jurisdiction, as often as may be necessary for the purposes of justice, and may hold such court on any day except Sunday, * *

. The judgment rendered by the justice was, therefore, not void. Section 551 and 4039 of the Revised Statutes cited by appellant are not in point.

II.

But even if such judgment had been void, that fact alone did not entitle plaintiff; to the relief prayed for Stockton, Exec'r, v. Ranson, Adm’r, 60 Mo. 539, and cases cited.

The judgment of the circuit court is affirmed.

All concur.