I dissent from the order denying a rehearing.
There was no competent evidence of the existence of the court upon whose judgments the action is founded.
The statute of Missouri, under which alone said court could have been called into existence, devolved upon certain judicial officers of the city of St. Louis the duty of dividing the city into districts, and of defining their boundaries, in each of which a justice of the peace was to be elected. The division made by them was required to be accurately and fully described in a signed report, which was to be filed in the office of the clerk of the circuit court, and certified copies thereof in certain other public offices. Of this report so filed, and of the districts thereby created, all courts exercising jurisdiction, original or appellate, in or over the city, were required to take judicial notice. Under this law it is clear that upon any question as to the existence of such districts, or any of them, the courts of Missouri would be absolutely concluded by the official report, just as they would be bound by the terms of the statute if, by statute, the legislature had directly defined a district without the intervention of a commission or other subordinate agency — that is to say, in the absence of the report, there would be for the courts of Missouri no districts and no justices. If this would be the result in Missouri, the same result follows here; and since we cannot take judicial notice of the report, its terms and existence must be proved either by a duly certified copy or by other competent evidence.
But no evidence whatever was introduced to show that any division had ever been made or report filed. There was consequently no proof of the existence of a fourth district, and, necessarily, a total failure to prove that there was any court to render the judgments alleged. Specific and repeated objections were made by the defendant at the trial to the evidence, upon the ground that there was no proof of the districting of the city; and if, as I believe, this was a fatal defect in plaintiff's case, there can be no question as to the right of the appellant to avail himself of the objection here. *Page 462
Sections 1921 and 1922 of the Code of Civil Procedure do not enable a person claiming to be justice of the peace to prove by his oath or certificate the existence of the court. When the existence of the court has been established, the fact that a particular person was the justice of that court may be proved by his oath or certificate, and also the facts giving the court jurisdiction of the parties and the law giving it jurisdiction of the subject-matter. All these things may be proved by the justice, but the existence of a court must first be proved, either by the law creating it or, as in this instance, by the acts of a commission acting in pursuance of the law, before it can appear that there is any justice.