Bennett v. Vinyard , 34 Mo. 216 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

The petition stated that an execution, in favor of the plaintiff, and issued by a justice of the peace, was delivered to the defendant, who was a constable, and that the defendant made a false return of the same ; and that a second execution on the same judgment was issued and delivered to the defendant, and that “ defendant failed to make a return of this execution to said justice within ninety days after the date thereof,” as was commanded by the writ. The petition then stated, that the balance of said execution and costs, with the exception of the $21 paid by William Null, is still due, and for which he asks judgment, and for judgment for costs, damages and the interest allowed by law in such cases. There was no averment in the petition that the plaintiff had sustained any loss or damage by reason of any of the matters stated in the petition ; nor was any testimony given to show such loss or damage. The answer put in issue the allegations as to the return of the first execution, and as, at the trial, no evidence was given to support them, they are considered as abandoned. The answer stated, as to the second execution, that within the ninety days it was delivered to the justice, but that by accident the defendant omitted to sign his name to the return of nulla bona written upon the writ. (This was not a good return ; the signature was necessary to authenticate the writing.) At the trial, evidence was given tending to prove the averments of the answer. The plaintiff gave no testimony, and asked an instruction that this constituted no return, and that she was entitled to judgment; which the court refused, and gave judgment for the defendant.

From the beginning the plaintiff seems to have gone upon an erroneous idea, that upon the failure of the defendant to return the execution he was liable to pay the plaintiff the whole amount specified in that writ. That was the law in reference to executions issued from courts of record, by the fifty-second section of the act to regulate executions, in the revision of 1835, but was changed by the fifty-ninth section of the act in the revision of 1845 ; and in the revision of 1855, the sixty-sixth section continues the law as established in 1845.

But the sixty-fifth and sixty-sixth sections of the act of 1855, to regulate executions, do not at all apply to this case. That whole act (1st sec.) applies only to executions issued from courts of record, except the eight sections immediately preceding the forty-fourth. The twenty-third and succeeding sections of the eighth article of the act to establish justices’ courts and to regulate proceedings therein, provide for a proceeding before the justice for a failure to make return of an execution, but does not fix the sum specified in the execution as the measure of the recovery; and the thirtieth section provides that the party injured may bring suit on the constable’s official bond, but this suit is not in either of the modes there provided. It is a suit against the officer, upon his liability at common law ; and such being the case, it was necessary for the plaintiff to aver in his petition the damage sustained by him. The law does not infer any specific damages from the matters averred under her petition. She could not have judgment for any amount whatever, and consequently the court did not err in giving judgment for the defendant.

Judgment affirmed.

Judges Bay and Dry den concur.