Introduction to JS v. McLellin

Document Transcript

JS v. McLellin
Clay Co., Missouri, Circuit Court, 21 August 1839
 
Historical Introduction
In early March 1839, JS initiated legal proceedings in the , Missouri, Circuit Court to recover damages from for taking some of JS’s property and unlawfully converting it to his own use. McLellin had been one of the original members of the church’s Quorum of the , but by summer 1838 he no longer affiliated with the faith. In late October 1838, he accompanied the state militia during its occupation of the Latter-day Saint settlement of at the conclusion of the military conflict between the Saints and their antagonists in the state. Following JS’s arrest on 31 October, McLellin reportedly led a group that “went about from house to house, plundering the poor saints, and insulting both male and female.” According to a statement inscribed by , who was then living with the Smith family, McLellin entered JS’s residence and stole books, clothing, and other goods.
The following spring, while JS was imprisoned in the jail in , he employed attorney John A. Gordon to initiate a civil suit against , claiming $500 in damages. Gordon brought the suit under the common law action of , a word derived from the French word meaning “to find.” William Blackstone’s influential commentary on English law indicated that trover was used “for recovery of damages against such person as had found another’s goods, and refused to deliver them on demand, but converted them to his own use.” On JS’s behalf, Gordon wrote a declaration that laid out JS’s claims against McLellin, using language derived from Blackstone. On 6 March 1839, Clay County Circuit Court clerk Samuel Tillery issued a summons for McLellin to appear at the court’s next session on 15 April. On 20 April, the court granted a motion by McLellin’s attorney, , requesting that JS be required to demonstrate that he would be able to pay the court costs. As JS had escaped state custody on 16 April and relocated to , he was unable to do so. On 21 August 1839, the court granted McLellin’s motion to dismiss the suit.
 
Calendar of Documents
This calendar lists all known documents created by or for the court, whether extant or not. It does not include versions of documents created for other purposes, though those versions may be listed in footnotes. In certain cases, especially in cases concerning unpaid debts, the originating document (promissory note, invoice, etc.) is listed here. Note that documents in the calendar are grouped with their originating court. Where a version of a document was subsequently filed with another court, that version is listed under both courts.

Footnotes

  1. 1

    Summons, 6 Mar. 1839 [JS v. McLellin]; Declaration, ca. 6 Mar. 1839 [JS v. McLellin].  

  2. 2

    See Documents, Volume 6, Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839.  

  3. 3

    Ebenezer Page, Letter to the Editor, Zion’s Reveille, 15 Apr. 1847, 55; Statement, between 10 and 25 March 1839 [JS v. McLellin]; see also Documents, Volume 6, Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839.  

    Zion’s Reveille. Voree, Wisconsin Territory. 1846–1847.

  4. 4

    See Documents, Volume 6, Introduction to Part 3: 4 Nov. 1838–16 Apr. 1839; and Declaration, ca. 6 Mar. 1839 [JS v. McLellin]. Missouri law required that the suit be commenced in the county where the defendant resided, not where the alleged wrong occurred. (An Act to Regulate the Practice at Law [17 Mar. 1835], Revised Statutes of the State of Missouri, p. 451, art. 1, sec. 4.)  

    The Revised Statutes of the State of Missouri, Revised and Digested by the Eighth General Assembly during the Years One Thousand Eight Hundred and Thirty-Four, and One Thousand Eight Hundred and Thirty-Five. . . . St. Louis: Argus Office, 1835.

  5. 5

    Blackstone, Commentaries on the Laws of England, 3:152, italics in original; see also “Trover,” in Bouvier, Law Dictionary, 2:454. Trover is a form of trespass on the case, which is how Gordon identified the action in the declaration.  

    Blackstone, William. Commentaries on the Laws of England: In Four Books; with an Analysis of the Work. By Sir William Blackstone, Knt. One of the Justices of the Court of Common Pleas. In Two Volumes, from the Eighteenth London Edition. . . . 2 vols. New York: W. E. Dean, 1840.

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

  6. 6

    Declaration, ca. 6 Mar. 1839 [JS v. McLellin]. The declaration indicated that McLellin found the goods and converted them to his own use in Clay County in September 1838. While this scenario is possible, it is not supported by other historical sources, which instead describe McLellin obtaining JS’s goods in Caldwell County in October or November 1838. It is more likely that Gordon employed a legal fiction, or hypothetical scenario assumed to be true to accomplish some purpose in a legal matter. According to a nineteenth-century legal treatise, “the allegation of finding” the property was considered “a mere fiction,” since under trover the plaintiff could seek damages only for the defendant’s conversion of the property. Furthermore, because trover was considered a transitory action, neither the place nor the time of the alleged wrong was considered material, meaning the plaintiff was not required to identify either accurately. (Historical Introduction to Declaration, ca. 6 Mar. 1839 [JS v. McLellin]; “Fiction of Law,” in Bouvier, Law Dictionary, 1:406; Swan, Practice in Civil Actions and Proceedings at Law, 21; Stephen, Treatise on the Principles of Pleading in Civil Actions, 343.)  

    Bouvier, John. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to the Civil and Other Systems of Foreign Law. 2 vols. Philadelphia: T. and J. W. Johnson, 1839.

    Swan, Joseph R. The Practice in Civil Actions and Proceedings at Law, in Ohio, and Precedents in Pleading, with Practical Notes; together with the Forms of Process and Clerks’ Entries. 2 vols. Columbus: Isaac N. Whiting, 1845.

    Stephen, Henry John. A Treatise on the Principles of Pleading in Civil Actions; Comprising a Summary View of the Whole Proceedings in a Suit at Law. 2nd American ed. Philadelphia: Robert H. Small, 1831.

  7. 7

    Summons, 6 Mar. 1839 [JS v. McLellin]; Motion, 18 Apr. 1839 [JS v. McLellin]; see also Historical Introduction to Promissory Note to John Brassfield, 16 Apr. 1839.  

  8. 8

    Docket Entry, Nolle Prosequi, 21 Aug. 1839 [JS v. McLellin].