Alexander v. Eberhardt

Decision Date31 March 1865
Citation35 Mo. 475
PartiesA. W. ALEXANDER, Appellant, v. A. W. EBERHARDT et al., Respondents.
CourtMissouri Supreme Court

Appeal from St. Louis Law Commissioner's Court.

A. Martin, for appellant.

I. Attention is called to the language of the special act, and to the well established rules of interpretation.

This special law does not expressly prohibit the justice from delivering process to other constables of his township, and the general law says he shall have the general authority to deliver generally to the constables of his township, unless expressly otherwise directed. (R. C. 1855, p. 963, § 3.) I say it is not specially otherwise directed, and that the act of March 4, 1861, is affirmative only so far as the first clause is concerned of the acts or general law prior thereto.

II. Granting, for the purpose of argument, that the special act of 1861 was a command to justices to issue their process to a constable of their own ward, and not to a constable outside of the ward, unless specially required by the plaintiff in a process, what effect will that law have upon a constable who receives an execution from a justice of another ward, without the previous request of the plaintiff, and fails to return it according to law?

If there is any irregularity at all, it has reference to some preliminary requirement which has not been followed. The selection of the constable is a matter in pais, entirely between the plaintiff and the justice. Whether the preliminary step has been taken is a question for the justice to determine, and to govern his act according to his best judgment. The statute at most is only directory, and, like many other statutes, will not be allowed to avoid proceedings which are not in strict compliance with it. (Hicks v. Chouteau, 12 Mo. 341; Hillman v. Jackson, 1 Minn. 183; Hobein v. Drewell, 20 Mo. 447; Renick v. Orser, 4 Barb., N. Y., 384.)

The form of an execution, where the plaintiff requests it to be directed to a constable of a township outside of the ward, is precisely the same as where it issues to a constable inside the ward, and for the issuing of which no request or selection is necessary. The execution was therefore regular upon its face. If it was voidable, it was for reasons not apparent upon its face. Now it is a well established rule of law, that an officer taking an execution regular upon its face is justified in executing it. I do not pretend to say that he may not object to executing the process until it is corrected, if there be any irregularity; I merely assert that he is justified in carrying it into effect, if he so chooses. But there is an admirable compensation in all the departments of the law. Where privileges are conferred, obligations are always exacted. It therefore follows as a consequence of the rule of law conferring immunities upon the officer, that if he undertakes to carry the process into effect, then he is liable to all persons interested in it, or affected by it, for any misconduct of his in executing it, in the same manner as if the process was regular. He will not be allowed to defend any of his misfeasances in the execution of it, on the ground that it was irregular or voidable. So far as he is concerned, it is a valid process, because he has undertaken to operate under its authority. (Gwinn on Sheriffs, pp. 573-4, and cases there cited.)

A. M. Gardner, for respondent.

I. The execution was never delivered to the respondent Eberhardt, nor was it delivered to his deputy, so as to charge him (Eberhardt) with any responsibility therefor.

The record shows that C. H. Smith was the deputy of Eberhardt for that part of said St. Louis township outside of the city of St. Louis. Of course, his authority to charge his principal only extended as far as the jurisdiction of his principal. The act of March 4, 1861 (Sess. Acts 1861, p. 443), under which the execution in question issued, expressly required it to be issued to the constable of the fourth ward, who, the evidence shows, was a Mr. Keating, unless the plaintiff in the execution expressly selected the defendant Eberhardt as the constable to whom said execution should be delivered.

Nothing of that kind was proven or claimed, and respondents therefore insist that even if said Charles H. Smith did receive and collect said execution, Eberhardt and his securities are not responsible for the same; because said Smith had no authority to act for Eberhardt in the fourth ward of the city any more than he had in the State of Illinois, and the delivery to him of said execution by the justice of the fourth ward was illegal, contrary to the statute, and not binding on respondents. (Allen on Sheriffs, 86; Marshall v. Hosmer, 4 Mass. 60.)

A constable is not amenable for the acts of his deputy unless they are performed in the ordinary line of his official duty as prescribed by law. (Gorham v. Gale, 7 Cow. 739.)

II. The execution in question was issued on the 23d of March, 1861. The justice's transcript does not show to whom it was issued, nor when it was made returnable; but the law then in force (see Sess. Acts 1861, p. 28, § 3) required all such executions to be made returnable in twelve months from date, and although the justice who issued it thinks it was made returnable in sixty days, yet whether that was so or not on the face of the execution, it was not really returnable, and could not be by law, in less than twelve months: and the defendants were, in no event, liable in this form of action until the expiration of twelve months from the date of the issuing of said execution; but the record shows that this suit was commenced in January, 1862, and before the return day of the execution.DRYDEN, Judge, delivered the opinion of the court.

This was a proceeding commenced before a justice of the peace (under § 23, Art. VIII., R. C. 1855, p. 968) against Eberhardt, and his securities, one of the constables of St. Louis township, in St. Louis county, for failing to make return of a fieri facias, on the return day thereof, placed in the hands of one of his deputies to be executed in favor of Alexander against one Bates. The case comes here by appeal from the Law Commissioner's Court where there was a verdict and judgment for the defendants below.

Before proceeding to consider the question arising in this case, it is proper to premise that St. Louis township, which comprises the city of St. Louis and a part of the county beyond the city limits, is...

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5 cases
  • Hefernan v. Neumond
    • United States
    • Missouri Court of Appeals
    • February 11, 1918
  • Carr v. Youse
    • United States
    • Missouri Supreme Court
    • October 31, 1868
    ...Moffett, Adm'r, 15 Mo. 604; Fine v. St. Louis Public Schools, 30 Mo. 165; Rector v. Harth, 8 Mo. 460; Davis v. Wood, 7 Mo. 165; Alexander v. Eberhardt, 35 Mo. 475; Tillman & Christy v. Jackson, 1 Minn. 183; Hobein v. Murphy, 20 Mo. 447; The People v. Supervisors of Chenango, 4 Seld. 317; Th......
  • Stuckert v. Thompson
    • United States
    • Missouri Court of Appeals
    • March 3, 1914
    ... ... performing the functions of a sheriff and having authority to ... serve writs as a sheriff. Alexander v. Eberhardt, 35 ... Mo. 475; Bick v. Wilkinson, 62 Mo.App. 31. (b) The ... statute authorizes the service by "any officer ... authorized by law ... ...
  • State ex rel. Ross v. Cave
    • United States
    • Missouri Supreme Court
    • October 31, 1871
    ...Court of Missouri.October Term, 1871. Appeal from Monroe Circuit Court. James Carr, for appellant, cited 11 Mo. 537; Alexander v. Eberhardt, 35 Mo. 475; Milburn v. State, to use of Ray et ux, 11 Mo. 188; Douglas v. Baker, id. 41; State, to use of Sublett et al., v. Melton, 8 Mo. 417; Wilson......
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