State v. Lemcke

Missouri Court of Appeals

State v. Lemcke

94 S.W. 734, 117 Mo. App. 486, 1906 Mo. App. LEXIS 87

CourtMissouri Court of Appeals

DecidedApril 2, 1906

StatusPublished

Cited by1 cases

This text of 94 S.W. 734 (State v. Lemcke) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Lemcke, 94 S.W. 734, 117 Mo. App. 486, 1906 Mo. App. LEXIS 87 (Mo. Ct. App. 1906).

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Opinion

ELLISON, J.

The appellant, Deierling, made affidavit charging defendants with threatening to shoot him. A justice of the peace in Putnam county issued his warrant for their arrest. They were arrested and taken before the justice, when they asked and obtained a change of venue to another justice. When the cause was called before the latter, it -was dismissed by the State and judgment rendered against Deierling for all costs. Afterwards, execution was issued by the justice of his own motion. It was returned by the constable nulla bona. Afterwards, a transcript of the judgment was taken and filed with the circuit clerk of Putnam county. Sometime afterwards the clerk, of his own motion, without an order from the State’s attorney, so far as appears, by the record, issued an execution directed, to the sheriff of Schuyler county where Deierling resided. The latter then filed his motion in the Putnam Circuit Court to quash the execution; which being overruled, he appealed.

The judgment and execution were in favor of the State and were for costs only. The execution was not issued by any proper representative of the State, as it should have been. Deierling’s motion to quash should therefore have been sustained. [Hoover v. Railway, 115 Mo. 77; Beedle v. Mead, 81 Mo. 297; Cranor v. School Dist., 151 Mo. 119; Cranor v. School Dist., 81 Mo. App. 152; State v. Barker, 63 Mo. App. 535.]

The judgment is reversed and cause remanded with directions to quash the execution.

All concur.

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ELLISON, J.

The appellant, Deierling, made affidavit charging defendants with threatening to shoot him. A justice of the peace in Putnam county issued his warrant for their arrest. They were arrested and taken before the justice, when they asked and obtained a change of venue to another justice. When the cause was called before the latter, it -was dismissed by the State and judgment rendered against Deierling for all costs. Afterwards, execution was issued by the justice of his own motion. It was returned by the constable nulla bona. Afterwards, a transcript of the judgment was taken and filed with the circuit clerk of Putnam county. Sometime afterwards the clerk, of his own motion, without an order from the State’s attorney, so far as appears, by the record, issued an execution directed, to the sheriff of Schuyler county where Deierling resided. The latter then filed his motion in the Putnam Circuit Court to quash the execution; which being overruled, he appealed.

The judgment and execution were in favor of the State and were for costs only. The execution was not issued by any proper representative of the State, as it should have been. Deierling’s motion to quash should therefore have been sustained. [Hoover v. Railway, 115 Mo. 77; Beedle v. Mead, 81 Mo. 297; Cranor v. School Dist., 151 Mo. 119; Cranor v. School Dist., 81 Mo. App. 152; State v. Barker, 63 Mo. App. 535.]

The judgment is reversed and cause remanded with directions to quash the execution.

All concur.

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94 S.W. 734, 117 Mo. App. 486, 1906 Mo. App. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lemcke-moctapp-1906.

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