Crowder v. Bradley ( 1876 )

Ebeeman, J.,

delivered the opinion of the court.

Motion against a constable for nonreturn of an execution issued by a justice of the peace. The execution was issued or came to the hands of the officer November 2, 1872, and was not returned until tbe thirteenth, of January, 1873, a period of more than thirty days from its issuance.

It is assigned as error here that the circuit judge submitted tbe matter to a jury. This is an improper practice, as has been repeatedly said by this court, though not such an error as for it alone to make the case reversible. It was the duty of the court, however, if he chose to have disputed facts submitted to a jury, to render tbe proper judgment on the facts before him.

The only excuses tendered for nonreturn in this case are, first, that the plaintiff said to the constable wbeu be gave bim the note for collection, that he would give him half of it, if he would collect it, as the payor was probably insolvent. This is no excuse for failure of duty.

Second, that the defendant had written a proper return on the writ on the twenty-eighth of November, 1872, and placed it in bis copy of the Code on bis mantlepiece. He then went off to some lakes on a fishing excursion; but when he returned had forgotten where he had placed the execution. It could not be pretended that this was a sufficient excuse. His duty was to have made return of the process before going off for pleasure. This shows entire neglect of his official duty, and renders him liable for such neglect. There is nothing to sustain the judgment of the court.

Let it be reversed and a proper judgment rendered here, with costs.