Hart v. Robinett

• Decision Date: 30 September 1837
• Citation: 5 Mo. 11
• Parties: HART v. ROBINETT.
• Court: Missouri Supreme Court

5 Mo. 11

HART

v.ROBINETT.

Supreme Court of Missouri.

September Term, 1837.

APPEAL FROM THE BOONE CIRCUIT COURT.

KIRTLY, for Appellant. Under the general assignment of error, I insist, in the first place, that the process is insufficient and ought not to be answered to; and if so found, judgment cannot be supported in this case, there being nothing to support it. In suits at law, or in chancery, if the defendant appear to a good declaration or bill, the defects in the service of the process is cured.

Here the summons is the declaration or bill; in other words, the charge against the defendant, if insufficient, leaves nothing besides.

The first objection to the process or summons is, that it is directed to no officer or person authorized to serve it. John Martin, for aught that appears in the record, may be a colored gentleman, an infant, or idiot. No reason appears for his selection, nor why the proper officer at law is passed by. It might as well have been directed to and served by the plaintiff, if, indeed, we could find out from it who the plaintiff is. The directing the summons to John Martin is without authority of law, indeed against its positive provisions. The 115, 2d article of the act regulating proceedings in the justice's courts, provides, that every summons shall be directed to the constable of the township in which the justice who granted the same resides (except where it is otherwise specially provided).--See Stat. of Mo. 351, 311. I have found no provisions in the statutes to warrant this exception. By the 205, same article, the justice may deputize, in certain cases, a proper person to serve process, by an endorsement on it in proper form; but even that is wanting here.

In the second place, the summons does not show under what statute the proceeding is, nor for what penalty, or whether for any penalty at all. The act respecting constables (L. M., 117), provides that a constable, failing to return an execution, shall forfeit and pay to the plaintiff double the amount of the execution. The law regulating executions (L. M., 260), for failures provides that the officer shall be liable to pay the whole amount in the writ specified. And the act regulating proceedings before justices of the peace, provides that for such failure, without good cause shown, judgment shall be given against the constable for the amount due by the execution, with interest thereon at the rate of one hundred per centum per annum from the time the execution ought to have been returned. The first act was passed the 17th of March, 1835; the second the 20th; and the third the 21st of the same month. These are different statutes, each imposing a different penalty for the same thing, and providing different remedies therefor, repugnant to each other. To which of these are we called to answer? The summons does not apprise us; nor does the record by the verdict or judgment show under which we were published. Indeed, neither the plaintiff's counsel nor the court seems ever to have settled on which hook we were caught.

The second error assigned is, the overruling the motion for a new trial. I insist, first: The transcript deputing Titus ought not to have gone to the jury; but if given, wanted other testimony to make out the proof necessary to the finding by the jury. The deputing by the principal alone, does not make him an officer; he must, after the deputation, and before he can act, take the oath required by the Constitution--see article 3, § 32. It is imperative on all officers, civil and military, before they can enter on their duties. There is no proof in the cause that the oath required by the Constitution was administered to Titus. The oath he did take, that is, to demean himself faithfully in office, was not required by law, and therefore a nullity. Hart was not responsible for the acts of Titus until the Constitution was complied with. His own acts as constable de facto would estop him from denying his responsibility, not the acts of Titus as deputy de facto, unless he adopted them, of which there is no proof here. Secondly: The oral testimony of Wright and Turner of the contents of the execution was improperly given to the jury. The execution itself was the best evidence of what it contained. If it were in the files of the justice, it or a copy should have been produced. If in our possession, they were bound to give us notice to produce it on the trial. If misplaced or lost, it should have been so shown. We were surprised by the evidence, at least it contradicted their record or transcript evidence, which proved that the execution issued was against Benj. Pendleton and Thos. G. Berry, and not William S. Burch and Benjamin Pendleton, as charged. 1 Phil. Ev. 176, 389, 390; 1 Ter. 147; 1 T. 201; Waring v. Warrin, 1 Johns. R. 341.

The third error assigned is the overruling the motion in arrest. Beside the matters already considered, it was alleged, in support of the motion, that the finding of the jury was insufficient, and also, that the court could not give judgment on the finding of the jury at all. Upon a proceeding to show cause why a penalty should not be inflicted, as to the essence and nature of the proceeding in the mode of trial, I apprehend it can make no difference whether the defendant is called to answer by motion summons, writ of attachment, or otherwise. On motion or attachment, perhaps but few would have thought of a jury. The summons suggested it, although at the time it struck me as a novelty; I thought then and still believe that the court alone was competent to determine the goodness or insufficiency of an excuse by an officer for a failure to do his duty. Now in this case, it appeared that the supposed execution, if any, was issued on the 17th of November, 1835, by justice Wright; he went out of office on the 21st or 22d of the same month, and not until the 8th day of January following did he deliver over the books and papers to another magistrate, of which it does not appear that Hart ever had notice. The return day of the execution was on the 17th of December in the interim. To whom and when then was he to return it? Not to Peter Wright, he was out of office; not to any other justice in the township, unless the docket and papers of Wright had been handed over to them, as might have been done; nor to any one else, until the 8th of January; and on that very memorable day in the annals of Augustus Hart and Gen. Jackson, the law made no provision for informing Augustus Hart of what became a justice Wright's papers, or what he was to do with the execution. Then clearly it was not competent for the jury to adjudge and determine the sufficiency of the above facts, as an excuse for the alleged failure, or of any other excuse. It is not very clear, however, what they did try; they were sworn to try the matters in controversy, and returned for their verdict that they found for the plaintiff, Pleasant Robinett, the sum of seventy-six dollars and twenty-five cents, the amount of the execution in favor of Robinett against Wm. S. Burch and Benjamin Pendleton; also, the sum of two dollars eighty-one and a fourth cents, damages, forsooth, for the detention of the same, and no doubt thought they were trying a petition and summons. And on this verdict of the jury, so sworn and so returned, judgment was entered, not...