Legal Opinion

Stevens v. Chouteau

Supreme Court of Missouri

Decided March 15, 1848PublishedCited by 4 opinions

ERROR from St. Louis Court of Common Pleas. Statement of the Case. This is an action of trespass de bonis asportatis, brought in the St. Louis Court of Common Pleas, by defendant in error against plaintiff in error, for the value of a horse. The plaintiff obtained judgment in the court below, and the defendant has brought the case by writ of error to this Court.

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ERROR from St. Louis Court of Common Pleas. Statement of the Case. This is an action of trespass de bonis asportatis, brought in the St. Louis Court of Common Pleas, by defendant in error against plaintiff in error, for the value of a horse. The plaintiff obtained judgment in the court below, and the defendant has brought the case by writ of error to this Court. The horse was taken by the deputy of the defendant, Stevens, who was at the time constable of St. Louis township, by virtue of two executions issued by Benj. F. McKinney, a justice of the peace, on a judgment in favor of one Richard…

1Opinion of the CourtNapton, J.

The only question in this case is, whether an execution issued by a justice of the' peace, returnable in sixty days, instead of ninety days, will justify the officer who levies it. Is the execution merely erroneous or absolutely void on its face?

There can be no doubt that a writ issuing from the Circuit Court, returnable out of term, is only erroneous, and not void. State, use of Ray, vs. Milburn, 11 Mo. R. A distinction has however been recognized by those eourts which have decided this principle, between executions issuing from courts of limited and inferior jurisdiction and those ema*385nating…

2Cases cited2 opinions

  1. People v. President & Directors of the Manhattan Co.New York Supreme Court · 1832
  2. Toof v. BentlyNew York Supreme Court · 1830

3Cited by4 opinions

  1. Leonard v. SparksSupreme Court of Missouri · 1893
  2. Loth v. FaconesowichMissouri Court of Appeals · 1886
  3. Lackey v. LubkeSupreme Court of Missouri · 1865
  4. Hawkins v. Lewes Journal Co.Court of Chancery of Delaware · 1922

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