State ex rel. Brothers v. Langdon

• Decision Date: 31 August 1874
• Citation: 57 Mo. 353
• Parties: STATE OF MISSOURI, to use of ARMSTRONG BROTHERS, Respondent, v. JOSEPH LANGDON, et al., Appellants.
• Court: Missouri Supreme Court

57 Mo. 353

STATE OF MISSOURI, to use of ARMSTRONG BROTHERS, Respondent,

v.JOSEPH LANGDON, et al., Appellants.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Buchanan Circuit Court.

A. H. Vories & T. A. Green, for Appellants.

I. The value of the property released by the constable was the measure of damages; and this matter should have been inquired into, and the damages assessed in the usual way, even if the court below was correct in sustaining the motion for judgment, notwithstanding the answer.

The court, therefore, erred in giving final judgment as to the forfeiture of the bond, and the amount of relators damage at the same time; and in refusing defendants an inquiry and assessment of damages in the usual way. (Gen. Stat., 1865, pp. 604-607, §§ 5--7, 15--28.)

II. Under the facts set up in defendant's answer, viz: that the administrator had duly notified the constable in writing, according to law, that he claimed the property, and that the constable notified relators of the same, and demanded an indemnifying bond, and relators refused to give it, the officer had the right to release the property, and abandon the levy. (Gen. Stat., 1865; p. 719, § 12; Kel. Treat., p. 159--162; 35 Mo., 506.)

W. H. Sherman, for Respondent.

I. It was the constable's duty to execute the writ according to the command thereof, to make relator's debt out of the personal property attached. (Bradley vs. Holloway, 28 Mo., 150; 1 Wagn. Stat., 614, § 63; p. 615, § 66; Bacon vs. Cropsey, 7 N. Y., 199; Parmalee vs. Hitchcock, 12 Wend., 96; Dominick vs. Eacker, 3 Barb., 19; Crock. Sher., 380.)

II. The written notice of claim served on the constable did not contain any of the requirements of the statute which authorizes a constable, in certain cases, to demand an indemnifying bond from the execution creditors, before proceeding to sell the property levied on. (1 Wagn. Stat., p. 842, § 12; 192, § 52.) The notice must comply with the statute, else it is the duty of the officer to ignore it. (Bradley v. Holloway, 28 Mo., 150.)

III. If Hoyt had notice of the attachment proceedings, before judgment was rendered, it was his duty to interplead, failing to do which the judgment ought to be held to bar his claim.WAGNER, Judge, delivered the opinion of the court.

This was an action commenced on an official bond as constable, against Langdon, as principal, and the other defendants as sureties. The breach assigned was, that Langdon failed to perform his duty in making the money on an execution placed in his hands for collection.

It is alleged in the petition that the plaintiffs in the suit were the plaintiffs in a certain proceeding by attachment before a justice of the peace; and that by virtue of process, the defendant as constable attached the personal property of the defendant therein, and had it in his possession; that judgment was duly given in the suit in favor of the plaintiffs, and that a special execution was issued and placed in the hands of the defendant, requiring him to make and satisfy the debt and costs; that in violation of his duty he released the property and returned the execution unsatisfied. There is also an averment in the petition that the property was amply sufficient to have paid the plaintiff's judgment together with the costs. The answer denied that the attached property was sufficient to satisfy plaintiff's judgment and costs; and then set up, as a further defense, facts which were deemed a justification in the defendant, in releasing the property without a sale, and returning the execution unsatisfied.

The court, on motion of the plaintiffs, gave judgment in their behalf, notwithstanding the answer; thus holding...