State ex rel. Lowe v. Ownby

• Decision Date: 31 October 1871
• Citation: 49 Mo. 71
• Parties: THE STATE OF MISSOURI, TO USE OF OBADIAH LOWE, Respondent, v. JOHN W. OWNBY et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 71

THE STATE OF MISSOURI, TO USE OF OBADIAH LOWE, Respondent,

v.JOHN W. OWNBY et al., Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Adair Circuit Court.

Barrow & Millan, for appellants, cited in argument, among other authorities, Taylor v. Wimer, 30 Mo. 126.

Harrington & Cover, for respondent.

BLISS, Judge, delivered the opinion of the court.

This is a suit on a sheriff's bond. After an answer was put in by some of defendants, the suit was dismissed as to them and a default taken against the others, and the court proceeded with a jury to inquire into the breaches and the damages, as required by statute. The petition contained three counts: the first for failing to pay over money received from sales of real estate upon execution in favor of the relator, Lowe, and against one Linder; the second for failing to make return of the execution, and the third for failing to levy upon property sufficient to satisfy it. The jury gave a verdict of $146 upon the first count, six cents upon the second, and $616 upon the third. Defendants complain chiefly of the instructions, and it is only necessary to consider the one pertaining to the third count, which is as follows: “If the jury believe from the evidence that said John W. Ownby failed to levy said execution on sufficient property to make the amount of said execution, and that the said Linder owned sufficient property out of which to make the same, then the jury will find for the plaintiff the amount of money in said execution due plaintiff, with interest,” etc.

The question is here presented whether a sheriff is bound, at all hazards, to find and levy upon the property of an execution-defendant, or whether he is excused if he has used due diligence to find the same, although he has failed to discover property which, if found, would have satisfied the execution.

This is not a new question. In regard to a similar instruction, Napton, J., in Fisher v. Gordon, 8 Mo. 386, says “that it was entirely too broad and comprehensive in its terms, and exacted a degree of diligence on the part of the officer which the law does not impose on him. The officer is bound to use reasonable diligence in searching for property. It is usual for the plaintiff to point out property when it is not known to the officer, but if it were pointed out by another, or if the officer had knowledge of such property, no matter how obtained, it would be sufficient to establish his liability. (Bell v. Commonwealth, 1 J....