State ex rel. Kirkland v. Ferguson , 13 Mo. 166 ( 1850 )

RYLAND, J.

This was a suit upon a constable’s bond, in the Circuit Court of Camden county, brought in the name of the State of Missouri to the use of the plaintiff, Joseph Kirkland, against John D. Ferguson, John Fullbriglit and Martin Fullbriglit. The said Ferguson was constable of Harmony township in said county of Camden and the said John and Martin Fullbriglit his securities on his official bond as such constable.

The plaintiff alleges that Joseph Kirkland obtained a judgment before a justice of the peace in said county of Camden for some fifty dollars debt and costs of suit, making about fi'fty-nine dollars in all. That the said Kirkland obtained an execution from the justice of the peace against the-body, goods and chattels of one Jacob M. McNeal, the defendant in the suit before thq justice of the peace, against whom he had obtained the judgment above-mentioned : that the said writ of execution was dated 27th day of October, 1840, and was returnable in thirty days — that the said writ was duly placed in the hands of said constable, Ferguson, and that said constable levied the same upon sufficient property, goods and chattels of said McNeal in his township to-have made the debt and costs ; but that said Ferguson refused to sell the property thus levied on. The plaintiff, also alleges as a further breach of said bond, that the defendant in the execution had not sufficient goods and chattels' whereof the debt could have been made and collected, yet the said Ferguson, as constable, failed and refused to take into custody the body of said McNeal, the defendant in the execution; and also, alleges that the said constable, Ferguson, failed and refused to levy of the goods and chattels of said McNeal in order to satisfy the said execution.

The defendants filed their plea of non eat factum and gave notice to the plaintiff, that they would also insist at the trial upon special matters of defense, among which, was this, that an injunction had been granted by two justices of the County Court of the county in which said Ferguson was acting as constable, and which injunction had been served upon him, restraining him from proceeding to execute the writ against the said McNeal any further.

Upon the trial, the plaintiff read in evidence the bond of said Ferguson, as constable, with bis securities as above named — a copy of the judgment of the said Joseph Kirkland against said McNeal — the writ of execution which had been returned to the justice on the 35th of November, 1840, being within the time prescribed — also proved by witnesses that the defendant, Ferguson, levied the execution on the property of the said McNeal took it with him to his own house, and advertised the same for sale. That the first clay on which the sale of the property was advertised to take place, happened to be Sunday and that the defendant, Ferguson, refused to sell on that day, and again advertised the property for sale. That on the second day fixed for the sale, a part of the property taken in execution was claimed by a third person ; and that the constable refused to sell the balance, unless the plaintiff in the execution would give to him a bond indemnifying him for selling. That Ferguson, the constable, then set a day for the trial of the right of property and advertised again to sell the property levied on ; and that, on the last day fixed for the sale, one John Tullís, who had claimed the property as his, came forward, previous to the trial of the right of property, and served the writ of injunction on Ferguson, restraining further proceedings. The plaihtiff also proved, that Kirkland commanded Ferguson to sell the property on the second day, which was not claimed by Tullís. This property consisted of a jack and some mill irons.

The defendant offered to read the writ of injunction, which was signed by Cyrus Colly and M. F. Smith as justices of the County Court, and which writ was under the seal of the County Court. The writ was directed to the constable of Harmony township in said county ; stating that Jacob M. NcNoal had filed his bond in the County Court and prays for an injunction, directed to said constable to stay the proceedings in the execution of Joseph Kirkland against McNeal. This writ notified him, said constable, to stop all further proceedings on said execution and to release said property, that said writ may he remanded to the Circuit Court of said county for further proceedings. This writ was served on the said constable, Ferguson, b3r said Tullís.

The defendant also offered to read his return on the execution in favor of Kirkland against said McNeal. To both and to each of these papers, the plaintiff objected. The court overruled the plaintiff’s objections and permitted the defendant to read' the writ of injunction and to road the return made by him on the execution. The plaintiff excepted to this opinion and action of the Circuit Court.

The plaintiff asked the following instruction. If the jury believe from the evidence, that Ferguson was constable as is alleged in the declaration, and that judgment was obtained by Kirkland against McNeal and execution issued thereon, as is alleged in the declaration ; and was placed in the hands of Ferguson, as is alleged, and that he levied on certain property of McNeal, by virtue thereof, and refused to sell the same, before he had notice of tire writ of injunction, then they must find for the plaintiff.

This the court re used to give. The defendant then asked the following instruction : That if the jury believe from the evidence, that after the issuing of the execution in favor of Kirkland against McNeal, and before the return day of said execution, that two of the justices of the County Court issued a writ of injunction, commanding said Ferguson to stay all further proceedings on said execution, then said Ferguson is not liable to the plaintiff for said debt in the execution mentioned and they will find the issue in this suit for the defendant.

• The plaintiff thereupon took a non-suit and moved afterwards to set it aside, which motion being overruled ho brings the case here by writ of error.

The questions arising on this statement of facts, involve the propriety of admission of the evidence on the part of the defendants in the court below. That evidence consisted of the writ of injunction and the constable’s return on the execution in obedience thereto. This evidence being the foundation of the instruction asked for by the defendants, if it be legal, then the instruction Was proper ; and if this instruction was proper to be given to the jury, the one asked for by the plaintiff was properly refused. I will notice the return of the constable first. This return was admitted properly. It was not offered as the evidence of the writ of injunction, but was offered to show what had been done by the constable — to show how be acted with the writ. He was bound to make return of the writ of execution, and he does so, by stating that he returned this writ unexecuted because he had been restrained by writ of injunction. This return would not have been sufficient evidence of the injunction ; nor was it offered as such — see the cases reported in 9 Mo. R. 794, and 11 Mo. R. 553, as to this point about the officer’s return. According to the views of this court in the last mentioned case, this return was evidence between these partios. I can see no fault in the court below in admitting this return to be read to the jury.

The other question involves the action of the court in admitting the writ of injunction. By the law as it existed when this writ of injunction was granted : “The County Court, or any two justices thereof in vacation, may grant injunctions in tbe following cases — First, to stay judgments or proceedings thereon, before 4any justice of the peace within the county.” “Injunctions shall be returnable to the Circuit Court of the proper county.” Digest 1835, p. 313. This writ was granted in this case by two justices of the County Court. They made out the writ, signed it and had the seal of County Court put to it. This writ was directed to the constable of the township (to the defendant, Ferguson, for he was the constable), and was served on him by Tullis, who was a private person.

It is contended, that the justices of the County Court can only make the order for the writ, and that the clerk of the Circuit Court must issue the writ. We will not undertake to say, that such is not the case. But nevertheless, we think that in this case, the writ of injunction, though it may be considered informal, was authority sufficient to the constable to stop all further proceedings on the execution; and that the Circuit Court committed no error in giving the instruction. The justices of the County Court had jurisdiction of the subject-matter. They could grant injunctions, and the constable might well suppose that it was as much their duty to issue the writ as to make the order for the clerk to issue it. I am not inclined to apply the strictest rules of technical proceeding to such inferior officers and tribunals.

The duty of the constable was to execute the writ during the timo it had to run, within tbe thirty days, and it may be his duty under some special circumstances to execute it sooner, and his failing to do so may make him liable, if, in consequence thereof the plaintiff should suffer loss or injury. We do not hold him bound to levy and sell within the first ten or twelve days ; he had the thirty days as the time given him to return the writ in, under the law at the date of the writ in this case (now a much longer time).(^a) The plaintiff cannot blame the officer, if within thirty days the defendant has stopped all further proceedings by injunction. This, the defendant in the execution could do, only on certain conditions ; filing his bond was one. If, therefore, the injunction was granted wrongfully, the plaintiff in the execution can resort to Ms bond for redress. But let him support this present suit, under the facts in this case, against Ferguson, and he may recover against him, although in the injunction case, the court may decide that ho has no just and equitable demand against McíTeal. I am, therefore, upon the whole, for affirming the judgment below, and my brother Judges concurring, it is affirmed.

a (a) See post p. 179.