Davis v. Hall ( 1914 )

Mr. Justice Burnett

delivered the opinion of the court.

1. It is not alleged that any process was directed or delivered to the constable, or that he had in his possession any such a paper or any money either officially or privately. Conceding that he had a writ, it is not apparent how the plaintiff could have suffered damage because the officer did not return it. It is not stated that she was a party to, or in any wise interested in, the action, if any there were, in which such process might have been issued. To recover anything on the bond of the constable the plaintiff must allege and prove a breach of the terms of that instrument, and that she suffered damages on account thereof.

2. Further, it is not nominated in the bond that the sureties have underwritten the fisticuffs of their principal, and, as their obligation is strictly construed, there was no cause of action stated against them. It was error to overrule their demurrer to the complaint, or to render any judgment against them. Not so, however, as to the defendant John Hall. Stripped of its verbiage about his official character, the lack of service of process, and the like, which may be rejected as surplusage, there remains in the complaint enough to sustain a civil action for assault and battery, and the consequent judgment.

The judgment is reversed as to the sureties, A. A. Hall and O. E. Hall, and affirmed as to John Hall.

Modified.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.