
    George M. Little v. James M. Little.
    Whore process does not ruti in the name of the State, the defect is fatal and cannot be cured by the appearance of defendant.
    
      J. Spalding, counsel for plaintiff' in error;
    1. If the process was irregular in any respect, such defect was cured by the appearance of the defendant, and •going to trial on the merits — Rev. Code, 350, sec. 4; 3 Mo. Rep. 369, Barnett & Ivers v. Lynch.
    
      T. Polk, counsel for defendant in error-:
    1. It is expressly required, both by the constitution of the State of Missouri and her statute law, that “all writs and process shall run in the name of the State ©f Missouri” — vide Con. of the State of Mo. art. 5, sec. 19; also Rev. Code of 1835, page 351, sec. 1©. See, also, Fowler v. Watson, Dec. Sup. Court of Mo. 1 Semi-annual part, page 27; also, Street v. Becket, decided at Fay-ette, 1834; Charless v. Mamey, 1 vol. Mo. Dec. 537.
    
      2. The statute regulating justices1 courts,-art'. 2, sec» - 20, and art. 8, sec. 5; requires that, on the allowance of■ an appeal, the justice shall enter the same on'his docket;"- and sec. 7, of the last-named article, requires that the justice, on or before the first day of the'term of thecir- - cuit court, next after the appeal shall have been allowed,shall file in the office of the clerk of the circuit court a transcript of all the entries mpde onhis docket relating, to the case, &c. In this case, the transcript does not show any allowance-or entrjr of an appeal. The appeal was therefore-irregularly taken, and the court did right to dismiss it.
    3.1 The same statute; -art. -2¿ sec., 12,'page 3o-l, gives a. form of a summons,-and requires the defendant to appear at the place named in" the-writ ‘‘at ten of the clock in-the forenoon,” thus fixing-the very hour of the defendant’s appearance. But in this case the ’Writ does not' name ten o’clock, nor indeed does it name any hour. • It therefore - does not conform to the statute, &c.
    4. It also appears from the record, that the original, ■ process in the,.case is-a scire facias -to the defendant - “ to ■- show cause why execution- should not be made of the ■ debt and costs,-” &c. not that the defendant '-should appear in order that a trial might be had for the purpose of rendering judgment, on which to issue execution; whereas, - the transcript of the justice shows that the defendant appeared, and that there was a trial.
    
      5. The transcript of the justice states,-that-the-action' is an action of debt on judgment. In such a case there mightwellbe a trial by-jury, &c. provided that the pro- • cess was appropriate;- and such proceedings are the only ' kind that are proper and legal; but here is a scire facias,.. which in no case, as far asmy knowledge-extends, can-iorm the 'basis of ’-any such-proceedings.
    6. It will- also be remarked -that this is a scire facias in one court; on>a-judgment obtained in another. True it is that they are both justices’ courts, but they are no - more the same, court, than the circuit courts of the -eighth and ninth judicial circuits-‘-are the same courts; • nor-does the record show that the docket and papers of' Hartley Lanham-had- been delivered over; legally or' otherwise,- to David Thomas.
    7. An action of debt-is-the only methoduf reviving a • judgment by common law, which has stood-without exe- - cution- for a year and-a-day — 3 Black. Com. 421; Co. Lit. 290, b. 1; or 3 Thomas’ Coke, 560; 2 Tidd’s Pract 962; 3 et seq. Bacon’s Abridg. title “Execution".
    
      thename^f the State, the defeat >s iataj,-and ean-”h°el appearanc/«f
    A scire facias must always be founded on some .•mátter or proceeding of record — 3 Thomas’ Coke, 529; 2 .Tidd’s Prae. 966. A scire facias, as shown by the authorities above cited, can issue only on a judgment tained.in .a court of record; and the justice’s court not being a court, oí record, a scire facias .issued .thereon s must be irregular and void»
   Edwards, Judge,

delivered the opinion of the court.

This was a suit before a justice of the peace, in which .George M. Little was plaintiff, and James M. Little defendant, commenced upon a judgment obtained some .years before. The ,process was a scire fucias,- running in the following words: “State of Missouri, county of St. Louis, ss. To the constable of St. Ferdinand township, in said county, greeting. Whereas,” &c. The defendant appeared and declared himself ready for trial before the justice, anda jury was swonrand found a verdict for defendant. The plaintiff appealed to the circuit court. There the defendant caused the witnesses which he had had subpoenaed by that court in this cause to be called, and upon their answering, the defendant, by his counsel, remarked that, before the jury was sworn, he had a mo.tion to make in the cause; and thereupon moved, the court- todimiss the appeal, upon the ground that the process was insufficient, not running in the name of the State, and not in conformity with the statute; and the court decided that said process was irregular and insufficient, and that the appeal must be dismissed, and. there.upon dismissed the case.

The defendant insists that, if the.proeess was in any respect,such defect was cured by the appearance of the defendant, and going to trial on the merits; and refers to sec. 4, 350, R. C. '35, and to 3 Mo. R. 369. The ,section of law refeired to, provides that “suits may be .instituted before a justice, either by .volun tary anee and agreement of the parties, or-b.y ..process.” In .this case, the parties have.chosen,.to commence by pro-cess; and if that,process was defective in deviating from ,tbe statute law only,-.the appearance of the party and going to trial on the merits, would cure those defects; and to this effect was .the decision in the case of Barnett & Ivers against Lynch, in 3 Mo. R. 369. In that case, the summons required the defendant to “appear and. answer Thomas Barnett and -Ivers” — -omitting the ¡given name of .Ivers; and -the,court decided that if the objection could have been raised at any time,- it was cer* tainly waived by the repeated appearance 'of the defend* ant, and the proceedings before the justice. But the objection here is of a higher character. The process does Hot run ’n ^le name °f the State. The constitution requires that “all writs and process shall run in the name of the State of Missouri.” The writ commences, “ State of Missouri, county of St. Louis, ss.” These words merely fix the venue of the action. After these should follow,“State of Missouri, to the constable of St, Ferdinand township, greeting,” &c. As the process does not run in the name of the State, the appeal from the justice was property dismissed by the circuit court. The judgment of the circuit court ought therefore to be affirmed, and the other judges concurring, it is affirmed.  