A. McDowell & Co. v. Morgan , 33 Mo. 555 ( 1863 )

Dryden, Judge,

delivered the opinion of the court.

The plaintiffs sued Clark by attachment, and recovered judgment against him before a justice of the peace. After return of nulla bona on an execution issued on the judgment, the plaintiffs resorted to the present proceedings by motion against the obligors in the forthcoming bond given in the original suit for judgment for the value of the property attached, or so much thereof as should be sufficient to pay the amount due on the execution, and the justice having given judgment against the obligors they appealed to the Law Commissioner’s Court, where, on a trial anew, they were again unsuccessful, and they have appealed to this court.

The statute fully warrants a proceeding like the one attempted in this case, and renders the obligors liable to a judgment in favor of the plaintiff for a sum sufficient to pay the primary judgment and damages; but, in order to this remedy, it is first the duty of the justice to direct the assignment, and of the constable to assign the bond to the plaintiff. Until the assignment is made, the plaintiff has no cause of action on the bond, which he can enforce in any form. (R. C. 1855, p. 266.)

. In this case no assignment was made until pending the trial in the Law Commissioner’s Court. It was then too late, and of no avail so far as the then proceeding was concerned. The plaintiffs could recover upon such title only as they had when they commenced before the justice, and having none then, they must of necessity go out of court.

The penalty of the bond being one hundred and sixty-one dollars, being in excess of the ordinary jurisdiction of justices of the peace, the counsel for the defence made the point before the law commissioner that the justice had no jurisdiction, and for this cause moved to dismiss. We think the objection was not well taken. The statute intends to give the party choice of two remedies: the one by motion in aid of the original suit, the other by an independent action at law based on the bond. In the one case, the jurisdiction of the justice is unaffected and unrestrained by the amount to be recovered, the general law defining the jurisdiction of justices’ courtshaving no application; in the other, the jurisdiction is determined by the amount of the penalty of the bond sued on.

Because the bond was not assigned to the plaintiffs before the institution of the proceedings in the case, the judgment will be reversed and the proceeding dismissed.

The other judges concur.