Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1882-07-29

said action, aud on the 18th of An
gust, 1876, plaintiff suffered . non
suit aud commenced the present sui
on the 18th of July, 1877. within one
year after such non-suit. 1t is alse
averred that the settlelnentsA and or
ders relied upon by defondantsin hi
answers had been vacated and set aside
as fraudulent by sdecrse Of the Ray
county circuit couft,to which, court
suit commercial III the sLafayette
county circuit court for the pnrpose
of setting aside aud yacating said
ordershad been transferred by change
of venue.
On the trial the court found fol
defendant on the fret, second third
and fourth breaches assigned aud
for plaintiff on the fifth and sixth
breaches, and rendered judgment &C
cordinGiy from which defendants
O'Gorman aud Aull have appealed to
this conrt.
The record is svoluminous one, the
pleadilgs coyeringtw eptxreight psxes
Of printed Me&ler.Shf4slhS tnstrec q
tons giveH andsf6fdsSd soufy sixto6ii
pages.
We wil not 90 into . detail Of the
mass al matter thus presented, but
Will cdnfne our examination to the
vital points " hich che 6scofd preseuts:
The first groulla6 t6new hob thlsc6r-
rectneD of the judgment is question
ed by 4unsel is that thu first secti0n
of the let of March, 1868 (scts 1868,
page ~. did not apply to county
clerks, S.causesaid section required the
sLatements thersld sr~eferrell9 TO be
made e the jnageor, Judges lof their
said courts, and that ASsthe persons
composing the county courts arc styled
in the Act creating them, justices OF
the county court,-that it was not
therefore Intended to include county
clerks.
This ia, we think, an entire mis-
conception Of the section. 1t is az fol-
lows:
"The clerks of the several courts
established by the constitution or the
laws Ut b state shall except as here
matter provided at the end of each
year during their respective terms OF
Office deliver 10 the judge Of judges
OF their said court under oath, or
affirmation q statement iu detail chow
Ing the aggregate amount Of all Off
cial fees and emoluments received by
hem seasclerkssdaring thssyear lAst
fhs codn yso61rt is . court estab.
1isbed byi law. sud the elerksof sucha
court is by the very terms Of the act
required TO make the statements
therein mentioned, and the terms
Judge or judges" eau be understood
iM no other ems than as including
county court justices.
This is shown by the definition OF
the term. The word judge is de-
fined by BOWER to be "a public of.
f.er lawfully appointed to decide
litigated questions according to law.
This in its most extensive sense in.
cludes all officers who are appOiut-
ed to decide such questions, aud not
only judges properly so.cslled, but
alse justices OF the peace and jnrors
who are jadges of the tAIts in isspe.
In Its more limited asnse the term
judge eignffes an eficefssMho ia 90
tanned .in his c0mmiisfon aud Also
presides in some court"
The same authsr deflaesiusticee to
be "ORcers appointed by q compe-
tent authority to administer justice.
They are so-eslled because in ancient
times the Latin word for judge was
%justiclG. In various sections of the
% xtul 9 the words judgeesaiMju1fice
Of thes county court are nsed Inter.
Echangeabfy and In the same Bbnse, an
example of which is TO be found in
the eryzact which declares that the
members ofthe county court shall be
styled justices of the county court ~
Sec. "a Wag. st. Az of said act. pro.
vides that, sit shall be lawful for
judges or justices of the county courts
not otherwise. disqualified, in all
FcouDties Of the state to practice de
attorneys and councillors at law IN
all courts except the county court OF
which such person shall be Judge OF
justice, sud fBacasesawhen the county
is u party thereto"
1t is also insisted that said act Of
1868. does not apply to county clerks
because the COuft-Whlch examines the
statements required 3ofa clerk is di.
Frected to make IAN order aud cause
the same to be certified to the county
court ofthe proper county, requiring
such clerk to pay the surplus, which
ulay be found IN his hands after max
ing the deductions authorized by the
act. into the treasury of the county.
lnasmuch rs the duty of examining
statements made by clerks waszde;
volyed not only upon county courts,
but other courts as well, aud inas.
much az the act required the surplus
fund 10 be in the hands OF the clerk
making the statement to be paid into
the county treasury Of the county, the
provision referred to directing that
the order made upon such clerk IL
pay into the county taeasury such
surplus WAS intended 10 perform nc
other Office than to put countyicourts
lin possession of Information which
would enable them to protect the in
tere.t of their respective counties il
the event of the nOn.payment of an,
surplus which any clerk may hav,
been ordered to pay. This being. q,
the requirement that All order Whel
made must be certified to the count,
court has no application to an orde
made by acounty court upon it's owl
clerk to pay. into the treasury an,
surplus found to bszin his hands.
The Objection takeNs 10 withou
Foundation as statutes are to be cor
strued with reference. to the obtec
intended by their enactment, and tina
construction is 10 be adopted whic
makes q rather than nonsense, whe
the act is susceptible of such construt
tiou. 1t is also insisted that the cour
erred III allowing plaintiff to read i
evidence the record aud judgment rel
dered III the suit Instituted agains
: O'Gorman.tO vacate thsOrders mad
/ by The county court ins1872, 1873 IN
!, 1874, and tha:it also erred in holdfp
that the effect of the judgment or dt
!, cree vacating and setting aside sai
= order was to place O'Gorman in COT
temptation of law as it he had neve
made any of the statements he WI
: required by law to make. aud rs il b
8 had never by his affidavit or othel
, wise satisfied the county court ths
e the fees and emoluments of his off
for each Of the years 1871, 1872 an
1873 did not exceed the sum OF 81, so
, We perceive no error either in I'll
8 admission of the decree In evldent
or the judgment of the court in d
claring its legal effect.
8 In view of the fact that defendant
claimed exemption from liability b
: cause Of the orders made by the cou,
9 ty court in 1872. 1873 and 1874, it ",
entirely. competent for plaintiff
show that the ordsss thus relic
upon, had in fact been expunge
from the record or vacated by con
u p~etentlegal authority.
i. That the court rendering the d