Amick v. Holman

Hough, J.

This was an action under the statute which gives double damages against any drover who shall drive off, or knowingly and willfully suffer, 'or permit, to be driven off, any stock from the premises of any citizen, or from the range in which such stock usually run, to any distance exceeding three miles from such premises, or range, R. S. § 5469. The plaintiffs recovered judgment, and the defendants have appealed. The testimony of two of the witnesses was contained in depositions taken before a jus-' tice of the peace. The defendants moved to suppress these depositions on the ground that they were not certified as required by law, but the court overruled the motion. The certificate of the justice is as follows :

I, R. S. Morrow, justice of the peace within and for the township of Jackson, in the county of Clinton, and State of Missouri, do certify that, in pursuance of the annexed notieé,came before me at the office of R. S. Morrow, justice of the peace for Jackson township in the county of Clinton and State of Missouri,--;-, who were by me severally sworn to testify the whole truth of their knowledge touching the matter in controversy, aforesaid, that they were examined and their examination reduced to writing and subscribed by them respectively in my presence, on the day, between the hours and at the place in that behalf first aforesaid, and their said depositions are now herewith returned, and I further certify that- -and--are non-residents of said county of Clinton, in said State of Missouri. Given at office in the county of Clinton and State of Missouri, this 19th day of August, 1876.

R. S. Morrow, Justice of the Peace.

The statute requires the officer to state in his certificate that the depositions were subscribed and sworn to by the witnesses, R. S. § 2151. The names of the witnesses should therefore appear either in the certificate, or in the caption : and if they appear in the caption and not in the certificate, they should be referred to in the certificate. This certificate is defective in failing to state, by reference, or otherwise, the names of the witnesses who were sworn and examined. They do not appear in the body of the certificate, nor do they appear in the caption. The statute intends that the certificate of the officer shall identify the depositions on file, as the depositions taken before him. For error committed by the court in overruling the motion to suppress the depositions, the judgment will be reversed and the cause remanded.

The other judges concur.