Howard v. Clark

Decision Date28 February 1869
Citation43 Mo. 344
PartiesJOHN B. HOWARD, Respondent, v. W. W. CLARK et al., Appellants.
CourtMissouri Supreme Court

Appeal from Fifth District Court.

The facts sufficiently appear in the opinion of the court.

H. M. & A. H. Vories, for appellants.

I. The justice had jurisdiction of the subject matter of the suit of Ullman v. Byers. Jurisdiction is expressly given by an act of the Legislature passed at the session of 1863. (Sess. Acts 1863, p. 173.) It has been repeatedly decided by this court that the General Statutes did not repeal these special and local acts, but that they still remain in full force.

II. The writ of attachment and summons was good. The time was sufficient; and if it was not--the court having jurisdiction of the subject matter of the suit--this would only be an irregularity which could not be reached in this collateral way. The writ being regular, it was the duty of the constable to execute it according to its commands. The attachment would hold the property, and all that was necessary was to get an alias summons or give a continuance.

III. The suit was brought against the constable and his sureties for a false return made on an execution. The money sought to be recovered was money made on an execution and not paid over. The return on the execution was exactly true. The constable applied a portion of the money made by the attachments and order of sale, and the sale of the property in satisfaction of the Ullman attachment and judgment, and then applied the balance on the plaintiff's execution. This was all of the money made on the execution in favor of the plaintiff, and every cent of it was returned by the constable and applied on the execution, and the facts truly stated in his return.

IV. The evidence shows that the money was properly distributed by the constable. Ullman's lien on the money was at least equal to the lien of the plaintiff; and where the liens are equal, the most diligent in discovering property and having the same seized gains a priority over his less vigilant adversary. (Bruce v. Vogel, 38 Mo. 100, and cases cited.)Ensworth, for respondent.

I. The justice of the peace who tried the attachment suit of Benjamin Ullman against Noah Byers and his wife had no jurisdiction to try said cause, because: 1. The amount exceeded the jurisdiction of a justice of the peace. 2. Because the process in attachment and summons was made returnable in less than fifteen days, and the proceedings and judgment thereon are void. (Gen. Stat. 1865, p. 701, § 19; 10 Mo. 771; 26 Mo. 601.) 3. Because it was the junior attachment which was levied upon the property, and therefore the jurisdiction after the levy belonged to the justice who issued the first attachment. (Gen. Stat. 1865, ch. 141, § 50.)

II. The District Court committed error in adjudging that the fund attached should be divided pro rata between the parties to the attachment, when J. B. Howard's attachment should have been first satisfied; but if the court should adjudge differently, the fund should have been divided so as to give to each an aliquot part of the fund. (Drake on Attach. § 260 et seq.)

III. The execution of the writs (if Ullman's could be called a writ) was simultaneous. They were both in the hands of the constable at the time the property was seized, and therefore one levy only. (14 Pick. 414; 17 Pick. 289; 19 Pick. 544.)

IV. The constable could not decide such question, although he, at his peril, arrogated to himself that right. Courts of justices of the peace are of limited jurisdiction, and have none except what is given by the statute. The statute expressly provides that the one who has jurisdiction of the senior attachment is to try all junior ones. (Gen. Stat. 1865, §§ 50, 1, 9, 71, 73, 84, ch. 141.) The statute must be strictly pursued. (3 Abb. N. Y. Dig. p. 562, Nos. 3, 4, 6, 23, 24, 29; 5 Abb. N. Y. Dig. p. 88, Nos. 131-2; id. p. 94, Nos. 215-7.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff brought suit before a magistrate against defendant Clark, as constable, and his securities upon his official bond, for false return, and for failure to pay over money collected. Two writs of attachment, with summons, were issued by different justices in St. Joseph against one Byers--one in favor of the plaintiff, February 10, 1866, returnable September 21 following; and one in favor of B. Ullman, dated September 3, 1866, returnable September 17, inst. The constable, on said September 3, attached fifteen head of cattle on both writs, and testified that they were discovered and pointed out to him by Ullman, and were attached first on Ullman's writ, and at once on the plaintiff's; though the returns show that in each case he levied upon the whole property upon the same day, without stating which was levied first. Personal service was had upon Byers in each case, and judgments of default rendered upon their several return days. Ullman's judgment was for $217, and the plaintiff's for $140. The property had been sold as perishable, under an order made in plaintiff's cause, for the sum of $362. The execution was issued upon the plaintiff's judgment the day it was rendered, September 21, and upon the judgment of Ullman, the 26th. The constable returns the Ullman execution satisfied in full, while upon plaintiff's execution he makes only $46, reciting in his return that this amount remains in his hands after paying another execution against Byers and wife prior in time to this, and paying certain costs. He testifies that the execution referred to was Mr. Ullman's.

Judgment was rendered for defendants in the Circuit Court, which was reversed in the District Court. Many points are made by counsel, some of which we will consider. The plaintiff's petition is attacked, and no judgment, it is claimed, can be rendered upon it, and if it will sustain a judgment it can only be one for a false return; when the evidence shows that if the constable be in fault at all it is for not paying over money. The petition is double. It improperly combines in one count matters that can be properly joined, but should be in different statements, to-wit: a complaint for false return, and for not paying over money collected. But the record shows no objection taken to this duplicity below, and it is too late to make it now. Informalities in pleading should be objected to when they can be rectified by amendment.

The plaintiff claims that the justice of the peace had no jurisdiction to render a judgment for $217 in favor of...

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46 cases
  • State ex rel. Kaercher v. Roth, 30050.
    • United States
    • Missouri Supreme Court
    • 8 Abril 1932
    ...ex rel. Moutrey v. Muir, 20 Mo. 303; State use of Garrett v. Farmer, 21 Mo. 160; State to use, etc., v. Shacklett, 37 Mo. 280; Howard v. Clark, 43 Mo. 344; State ex rel. Rice v. Powell, 44 Mo. 436; State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; Warrensburg v. Miller, 77 Mo. 56; Lewis v. Ca......
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    ...v. Bower (1858), 26 Mo. 601, merely because both are cited as the authoritative basis for the decision next mentioned. In Howard v. Clark (1869), 43 Mo. 344, it was said "a judgment by default, rendered upon service within the time the law prescribes, is invalid;" and that such a judgment c......
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