Frost v. Wilson

• Decision Date: 31 October 1879
• Parties: FROST, Appellant, v. WILSON.
• Court: Missouri Supreme Court

70 Mo. 664

FROST, Appellant,

v.WILSON.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Hannibal Court of Common Pleas.--HON. J. T. REDD, Judge.

AFFIRMED.

The executions in question in this case all came into the hands of the constable prior to the 21st day of July, 1875.

W. P. Harrison for appellant.

W. D. Anderson, W. C. Foreman, S. D. Barnes and Adam Theis for respondent.

HENRY, J.

This suit originated in the Hannibal court of common pleas, and the petition alleged that the plaintiff was lawfully possessed of a stock of dry goods, and that defendant, Wilson, wrongfully took them from his possession, to his damage, &c. The defendant's answer alleged that at the time the goods mentioned in the petition were taken possession of by him, he was constable of Mason township, in Marion county, Missouri, and acting as such, and that Charles W. Mills was recorder of the city of Hannibal, and by the charter of said city was vested with the power and jurisdiction of a justice of the peace, and that John L. Lacey was a justice of the peace within and for Mason township, in said county, and that several executions, some issued by said Mills, and others by said Lacey, as justices of the peace, aggregating in amount about $1,500, on judgments rendered by them respectively, against Chas. H. Yancy, were placed in his hands as constable, and that he levied them upon the goods in question as the property of said Yancy to satisfy said executions.

Plaintiff filed a replication denying that Mills was a justice of the peace, and that the judgments rendered by him possessed any validity; that any valid executions were or could have been issued on said pretended judgment; that any valid executions came to the hands of defendant issued by said Mills; that defendant seized, or held said goods by virtue of any executions issued by said Mills; denied that Lacey rendered the judgments set out in the answer; that he issued any executions, &c., &c., and alleged that plaintiffs in said executions agreed with said Yancy that said executions were not to be levied on the stock of goods then in Yancy's possession, but that Yancy should continue in possession as usual; and that under said agreement and by direction of said plaintiffs, the defendant did not levy said executions on said goods, but held the same until the 24th day of July, 1875; that on the 21st day of July, 1875, Yancy conveyed the goods, and delivered possession thereof, to plaintiff, under the general assignment law, for the benefit of all the creditors of Yancy, and on the 24th day of July, 1875, defendant took the goods from the plaintiff. The goods so taken were only a part of the assigned stock. The execution plaintiffs, on their application, were made parties defendants. The cause was tried by a jury in May, 1876, and there was a verdict and judgment for defendant, from which plaintiff has appealed.

1. CITY RECORDER EX-OFFICIO JUSTICE OF THE PEACE: constitutional law.

The rendition of the judgments by Mills and Lacey, respectively, as alleged, was proved, and the only objection interposed by plaintiff was, that Mills was not a justice of the peace, and had no power to render the judgments. It is conceded that plaintiff failed to prove the alleged agreement between Yancy and the plaintiffs in the judgments rendered by said justices of the peace, that the executions should not be levied, and that Yancy should continue in possession of the goods. There are, therefore, but two questions for...