Belkin v. Hill

• Decision Date: 31 October 1873
• Citation: 53 Mo. 492
• Parties: JASPER BELKIN, Defendant in Error, v. GEORGE HILL, DAVID GRIFFIN, and THE LAMOTTE LEAD COMPANY, Plaintiffs in Error.
• Court: Missouri Supreme Court

53 Mo. 492

JASPER BELKIN, Defendant in Error,

v.GEORGE HILL, DAVID GRIFFIN, and THE LAMOTTE LEAD COMPANY, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to St. Francois Circuit Court.

John F. Bush, for Plaintiffs in Error.

I. The taking of the indemnity bond by the officer released him from all liability to an action by the claimant who gave notice of his claim. (W. S., 607, § 28; 608, § 29; Stewart vs. Thomas, 45 Mo., 42; Stewart vs. Ball's Admr., 35 Mo., 209; State vs. Leutzinger, 41 Mo., 498; State vs. Doane, 39 Mo., 44; Bradley vs. Holloway, 28 Mo., 150; St. Louis, A. & C. R. R. Co. vs. Castello, 28 Mo., 379; State vs. Watson, 30 Mo., 122.)

The word “may” in section 29 (W. S., 608), beyond question, has an imperative force; imports an exclusive idea and creates an exclusive remedy. (Leavenworth & D. R. R. Co. vs. County Court of Platte Co., 42 Mo., 171; Steines vs. Franklin county, 48 Mo., 167.)

II. Beyond doubt the policy of this statute, the intention of the Legislature in the enactment of these provisions, was to protect officers against vexatious actions for seizure of property in the course of official duty. (Bradley vs. Holloway, 28 Mo., 150; State vs. Doane, 39 Mo., 44.)

III. The claimant has a clear option either to present his claim to the officer (under the statute and in pursuance of the provisions thereof), and thereby elect the remedy of an action on the bond, which the statute provides, or hold his peace, and by his silence retain his original remedies. (Stewart vs. Ball's Admr., 35 Mo., 209; Bradley vs. Holloway, 28 Mo., 150.)

IV. The statutes of 1855 contained a provision debarring claimants, who gave notice of their claims, from all actions against officers after the taking of indemnifying bond, except in case of insolvency of bondsmen. (R. C., 1855, p. 744, § 2.)

The present statutes contain no express repeal of this section, nor was there any such repeal by implication without manifest repugnancy of provision, which nowhere appears. The law never favors repeals by implication and allows such repeals only for manifest repugnancy. (Sedg. Stat. & Const. Law, 123-127; Dev. Stat., 533; Deters vs. Renick, 37 Mo., 597; State vs. Judge of St. Louis Probate Court, 38 Mo., 529; State vs. Draper, 47 Mo., 29.)

V. The 32d section of the statutes of 1855 was surplusage, an embodiment or expression of the legitimate effect of the preceding sections.

W. N. Nolle, for Defendant in Error.

I. The provisions in the execution law of 1855 were expressly repealed by the revised statutes of 1865. (W. S., 896, § 2.)

II. The cases cited by defendants arose under the statute of 1855, or under a local law specially applicable to the County of St. Louis.

III. The bond to be taken after notice of claim shall be for the full indemnification of the officer making the seizure, and not to indemnify particularly the claimant. (W. S., 607, § 28.) Hence, the reasonings of this court as applied to the local act, or execution law for St. Louis county, in the several cases arising thereunder, do not apply to the execution law of 1865. The general execution law of 1865 does not exempt the officer making the seizure from liability.

NAPTON, Judge, delivered the opinion of the court.

This action is replevin to use the name by which it was known before the adoption of our practice act, or a suit for the delivery of personal property, as it is termed in the 6th article of this act. It was originally brought in Madison county and was against the sheriff and his deputy, and, before its removal to St. Francois county, the Mine LaMotte Lead Company was, on its application, made a defendant, and afterwards on the application of said defendants, and the affidavit, required in such cases, by the Company or its Secretary, it was removed to and tried in St. Francois county.

The action is for the delivery of a horse to the plaintiff, which had been levied on as the property of one Herzinger on a judgment and execution in behalf of the LaMotte Lead Company against said Herzinger.

The question of the title to the property was submitted to a jury on instructions, and upon evidence, to which no serious objections have been urged, and therefore the finding in this respect must be held right, and the only point in this case relates to the proper construction of our present execution law, which is found in the Revised Code of 1865, pp. 607, 608, §§ 28, 29.

There was an indemnifying bond given to the sheriff by the Mine LaMotte Lead Company, and it is claimed that a suit on this bond by the claimant is the proper and only remedy which he has, and that the officers, the sheriff and his deputy, are exempted by the statute from any liability to an action.

That this exemption existed under the General Statutes of 1855, and under the special acts which regulated the subject in St. Louis county, is conceded. Various decisions of this court are cited to show this, and it is argued now, that the law of 1865 is substantially the same, and was so intended by the Legislature.

But it will be seen, that the laws are materially different in several respects. Under the laws of 1855, and previously, (p. 742, § 26) the claimant was required to make known his claim to the sheriff in writing, verified by affidavit, and the notice to the plaintiff was required to be in writing.

The present act (R. C., 1865, p. 607, § 28) allows the claim and notice to be verbal.

The act of 1855 then allowed the sheriff to summon a jury to try the right of property, and the verdict of this jury was a comqlete indemnity to the officer, however the issue was found, except that (p. 743, § 30) if the plaintiff in the execution would give bond with security, the officer was compelled to proceed with the sale. This bond was upon condition, as it now is, “to indemnify him from all damages and costs which he might sustain in consequence of the seizure and sale of the property on which the execution was levied, and also to pay and satisfy, to any person or persons, claiming title to such property, all damages which such person or...