Donohoe v. Chappell

4 Mo. 34

• Court: Supreme Court of Missouri
• Decided: May 15, 1835
• Status: Published

Opinions

Opinion of the court delivered by

Wash, Judge.

Donohoe the plaintiff in error sued Chappell the defendant in. error before a justice of the peace, and got judgment, from which Chappell appealed to the circuit court, where the judgment of the justice was reversed and the cause dismissed; and the plaintiff has brought his writ of error to this court to reverse the judgment of the circuit court.

The ground relied on by the counsel for the defendant in error is, that there was no sufficient declaration or statement filed with the justice as the foundation of the action.

The statement is in these words:

“Stephen Donohoe v. Abner Chappell justice’s court, Chariton Township — in action of debt. Stephen Dono-hoe the plaintiff in said suit complains that the defendant Abner Chappell has thrown down the fences of the said plaintiff eight times, and left the same down at sundry times, between the first day of August 1834, and the second day of October next following, and the said plaintiff for the aforesaid trespasses and damages done and committed by the said Abner Chappell, demands the sum of fifty dollars, therefore he sues.”

jn an debt before j. p. ynder the statute, passes, a state-mentin writing is required, In this statement ^ landYies jn the atate 0f Mo. — and it must be described,

Upon this statement or declaration the justice issued a regular summons, in debt.

This was evidently intended as a proceeding in an action of debt under the statute for the prevention of certain trespasses, Rev. code p. 781 — and the only question is that on which the counsel for the appellee relies as to the sufficiency of the declaration. It is not doubted but that in this case a substantial statement was necessary,

The act dispensing with the necessity of filing such statements m actions of debt &c., and requiring the plaintiff to file with the justice the bond, note or account sued on, was not intended to apply to a case like the resent. Or if from the generality of its terms it should e held to include such actions of debt as the present, still in pursuing the spirit of the act, some sufficient statement in cases not founded on bond, note or account, was clearly required.

The statute under which the plaintiff has sued, is a very peculiar one, and loosely wmrded.

One of the provisoes to this statute authorises the defendant to “set up a title to the land on which any of the trespasses mentioned in the first section of the act, are alleged to have been committed,” and then authorises the justice to take the recognizance of the party to appear &c. “in any Court of Record within this state having cognizance thereof” that is, of the claim or title so set up— and then further to transmit “the Recognizance so by him taken as aforesaid, to’ the clerk of the circuit court in which” &c. And in another proviso, the party for whose benefit such recognizance was taken, is authoiised to sue out a scire facias &c. against the defendant and his securities.

In support of the statement or declaration in this case, the counsel for the plaintiff in error contend that the action of debt provided for in the statute is like any other action of debt altogether transitory, and will as well lie for trespasses committed in any other county of the State, or in any other State as for those committed in the township or county in which the justice resides &c.

This position is not tenable. It should at least sufficiently appear that the trespasses complained of were committed within the State of Missouri, and the law on which they are alleged to have been committed should be described with such l’easonable accuracy as to enable the defendant to know whether he might defend himself or not by settingup a title to the land. The statute of 1831, curing all defects in the proceedings of justices of ffie peace, does not cover the case; The statement in this case was the act of the party himself and not of the justice. It is too defective to ground an action upon it, under the statute. It has not been thought necessary to notice particularly the cases cited by the counsel. In the case of Cook & Callaway (1st vol. Missouri Dec. 545) decided by this court, there was the same defect in thede-< daration or statement, and in that case it was held to be fatal. Greater accuracy is essential not for the reason as stated in Cook & Callaway “to give the justice jurisdiction,” but to apprise the defendant of what he has to an-1 swer, and to enable him with greater care and certainty to place the judgment &c. in a future action for the same Cause.

„in> 31 in regard to errors of j. p. does "hse r<3£iCl1 tlliS Judge Tompkins dissenting. The statement in —noTnecestofyto lay yeíiiie, to give J‘P-, 1 anduhn e c ess ary!