Douglass v. Baker
| Decision Date | 31 January 1845 |
| Parties | ANN DOUGLASS AND THOMAS L. DOUGLASS v. ROBERT E. BAKER. |
| Court | Missouri Supreme Court |
ERROR TO CALLAWAY CIRCUIT COURT.
TODD, for Plaintiff. The plaintiff insists to reverse the judgment: 1. That no demand of defendant for money is necessary, as this action is in tort.
2. That the officer is bound to use due diligence to serve a capias. 3. That the damages for neglect of duty in serving execution is fixed by law, and does not depend upon proof of actual injury sustained. 4. Sheriff is bound to use diligence to levy execution. 1 J. J. Marshall, 551.
J. K. SHELEY, for Defendant.
Ann Douglass and Thomas L. Douglass brought their action of trespass on the case against Robert E. Baker, in the Circuit Court of Callaway county, where judgment being given against them, they appealed to this Court. The declaration states, that one Daniel Nolly was indebted to the plaintiffs on a judgment obtained in the Circuit Court of Callaway county, on 6th December, 1842, and that on that day, they sued out of the office of the clerk of the Circuit Court of said county, a writ of capias ad satisfaciendum, against the body of said Nolly, and also a writ of fieri facias, against the goods, &c., made returnable on the 5th day of April then next following; which was on the same day delivered to the sheriff, the said Baker, to be executed and returned; and charges that Nolly was, during all the time intervening between the issuing and return day of said writ, within the county of Callaway, and that Baker, the sheriff, refused to execute it. By which means he lost his debt.
The judgment and execution were given in evidence. It was also in evidence, that on the first day of January, 1843, one of the plaintiffs told the sheriff to execute the writ on Nolly, by taking his body, and pointing to Nolly, who was passing along the street; and that the sheriff replied, he had heard the Legislature had, or was about to pass a law to abolish imprisonment for debt; but that he neither promised to execute the writ, nor declined doing it. It was also in evidence, that Nolly, at the date of the execution, was notoriously insolvent, and still continued so; and that during the winter after the issuing of the execution, he had settled some demands against him, by assigning or otherwise transferring notes.
The defendant then gave in evidence a letter of the secretary of State, to the sheriff of Callaway county, inclosing the act of 17th of January, 1843, by which imprisonment for debt was abolished. He gave other evidence of the general reputation of the insolvency of Nolly.
The plaintiffs prayed from the court the instruction following: 1. If they believe from the evidence, that the defendant in the execution was within the county of the officer in whose hands the capias was placed, and that he could have been arrested before the passage of the act of the Legislature abolishing imprisonment for debt, then, they will find for the plaintiff. The third instruction was, that if the jury believe from the evidence, that the execution was not returned according to the command thereof, they will find for the plaintiff. It was charged in the declaration, that the execution was not returned according to its command; and the return made was, that no goods, &c., of Nolly, were found, and that his body was not taken on account of the passage of the law above-mentioned. These instructions were refused, and the court on the motion of the defendant, gave the following instructions: 1. That the jury must find for the defendant, unless plaintiff has proved a demand of the defendant, for the money in the execution. 2. That the jury must find for the defendant unless they believe the plaintiff had been damaged by the failure of the defendant to arrest Nolly. The plaintiff excepted to the decision of the court in giving these instructions, as they had before done to the decision of the court in refusing those asked by themselves. The plaintiff then took a non-suit, and afterward moved to set it aside, for reasons filed, to wit: the giving and refusing the instructions as above-mentioned.
The cases cited by the defendant, to prove that the plaintiffs ought to have made a demand of the sheriff, all relate to cases of motions against officers for money received by them, and paid over; or, of an agent or factor for his principal. This action is against a sheriff charged with a breach and neglect of duty. In the case of Dygert v. Crane, 1 Wend. 534, it is...
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The State ex rel. Nolte v. Reynolds
...no corrupt or bad intentions," or that his act was the result of an error or mistake is immaterial. Swain v. Phelps, 125 N.C. 44; Douglas v. Baker, 9 Mo. 41; Milburn State, 11 Mo. 188; State ex rel. v. Case. 77 Mo. 253; Finley v. Hayes, 81 N.C. 368; State ex rel v. Nolte, 187 S.W. 896. (8) ......
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Sherrill v. Wilson, 64746
...Thus, for many years, our courts have recognized the liability of a sheriff or constable for failure to levy an execution, Douglass v. Baker, 9 Mo. 41 (1845), or for an improper levy or sale, Duncan v. Matney, 29 Mo. 368 (1860). Numerous other examples could be cited. We deal only with tort......
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State ex rel. And to Use of Missouri Poultry & Game Co. v. Nolte
...of 1845 the liability for failing to make return of an execution has been limited to the damages actually sustained thereby. In Douglass v. Baker, 9 Mo. 41, the court held sheriff liable for the penalty of the statute for failing to execute a writ of capias ad satisfaciendum against the bod......
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State v. Nolte
...of 1845 the liability for failing to make return of an execution has been limited to the damages actually sustained thereby. In Douglass v. Baker, 9 Mo. 41, the court held a sheriff liable for the penalty of the statute for failing to execute a writ of capias ad satisfaciendum against the b......