Abbott v. Norman

• Decision Date: 17 June 1918
• Docket Number: 51
• Citation: 204 S.W. 303,134 Ark. 535
• Parties: ABBOTT v. NORMAN
• Court: Arkansas Supreme Court

204 S.W. 303

134 Ark. 535

ABBOTT v. NORMAN

No. 51

Supreme Court of Arkansas

June 17, 1918

Appeal from Clark Circuit Court; Geo. R. Haynie, Judge; reversed.

Judgment reversed and cause remanded.

John H Crawford and Dwight H. Crawford, for appellant.

1. Appellee is liable under paragraph one for his failure to serve the writ. He was duly elected and qualified as constable and acted as such. 89 Ark. 488; 123 Id 46. The law presumes that every officer has performed every duty enjoined on him by statute. A violation of that duty renders him liable. Kirby's Dig. § 678; 23 Ark. 295.

2. The court erred in not rendering judgment for the penalties sued for. Kirby's Dig., §§ 4487, 4566, 4570, 355. He totally failed to serve the writ or return it.

3. The verdict of the jury and judgment are without testimony to sustain them. He does not deny that he was constable; that he accepted the office and received his commission, gave bond qualified and acted. For want of denial those facts are admitted. He held over until his successor was elected and qualified. 122 Ark. 490. A status once shown will be presumed to continue until it is shown that it has ceased. 22 Ark 524; 7 Id. 449; 10 R. C. L. 872.

4. The evidence is sufficient to show that he was the qualified and acting constable. The court should have taken judicial notice of the fact that he was the constable. 12 Ark. 190; 25 Id. 336; 66 Id. 180.

5. There was no evidence to contradict the testimony that he was constable, and the theory that he was not ought to have been submitted to the jury. It was error to read section 678, Kirby's Digest, to the jury and in orally repeating to the jury the substance of that section. The verdict is clearly against the evidence.

The appellee, pro se.

1. Appellee denies that he was constable as alleged. Whether he was liable was the issue, and it was fairly submitted to the jury. Their findings are conclusive. 50 Ark. 267, 305; 68 Id. 83. They virtually found that he had not complied with Kirby's Digest, §§ 676 to 681, 5753, 5757, etc.

The status of Norman was never fixed at any time by any competent proof. 122 Ark. 486-490.

2. The question was fairly submitted to the jury. The answer may have been defective, but the parties went to trial without objection, and it is too late to object now. 72 Ark. 62-66.

STATEMENT OF FACTS.

This suit was instituted in the circuit court by J. R. Abbott against G. F. Norman.

In the first paragraph of his complaint, Abbott alleges that Norman at the general election in September, 1914, was elected constable for Missouri township in Clark County, Arkansas; that he was duly qualified as such constable and entered into the discharge of the duties of his office; that on November 20, 1916, Abbott sued out a writ of attachment against the property of Harry Myers to collect a debt of $ 65.70; that said writ was issued by a justice of the peace of Missouri township and was delivered to Norman as constable of said township for execution; that Myers owned and possessed sufficient personal property subject to attachment to satisfy the writ; that Norman failed and refused to levy the attachment whereby Abbott suffered the loss of his debt.

In the second paragraph of his complaint Abbott alleges that Norman as constable of Missouri township received into his hands a writ of attachment issued by a justice of the peace of Missouri township and returnable on the first day of December, 1916, in a case wherein J. R. Abbott was plaintiff and Harry Myers was defendant; that Norman as such constable failed to levy said writ and judgment was prayed for in the sum of not less than $ 50 nor more than $ 500 in accordance with subdivision 6 of section 4487 of Kirby's Digest.

According to the testimony of J. R. Abbott he commenced an action before a justice of the peace of Missouri township in Clark County, Arkansas, against Harry Myers on November 20, 1916, for the sum of $ 65.70, with interest. An attachment was duly issued by the justice of the peace and placed in the hands of G. F. Norman, as constable of said township, for execution.

According to the testimony of the justice of the peace who issued the attachment, Norman failed to serve it or to return it within the time prescribed by the statute. Norman gave as an excuse therefor that he had been prevented from serving it by the threats of Harry Myers.

It was shown by both of the justices of the peace of Missouri township that Norman was duly elected constable of said township and they stated that he had told them that he had been sworn in as such constable; that since said election he had been acting as, and had been recognized by the public generally as constable of said township. It was also shown by the sheriff that Norman had been acting and recognized as constable of Missouri township.

The court submitted to the jury the question of whether or not Norman was the duly elected, qualified and acting constable of Missouri township at the time the writ of attachment was placed in his hands for service, directing it to find for the plaintiff in the sum sued for if this was shown by a preponderance of the evidence; otherwise to find for the defendant. In addition the court read to the jury section 678 of Kirby's Digest which provides in effect, that every constable shall within...