Melcher v. Scruggs

• Decision Date: 31 October 1880
• Citation: 72 Mo. 406
• Parties: MELCHER v. SCRUGGS et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 406

MELCHER

v.SCRUGGS et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Cole Circuit Court.--HON. G. W. MILLER, Judge.

REVERSED.

Mack J. Leaming, Seneca N. Taylor and B. F. Rex for appellants.

1. The warrant was a complete protection to the constable. Broom's Legal Maxims, 95, 100; Buck v. Colbath, 3 Wall. 334; Freeman v. Howe, 24 How. 450; Patten v. Weightman, 51 Mo. 432; Milburn v. Gilman, 11 Mo. 65; Mayor, etc., v. Opel, 49 Mo. 190; Miller v. Brown, 3 Mo. 127; Hickman v. Griffin, 6 Mo. 37; Burton v. Sweaney, 4 Mo. 1; 2 Waterman on Trespass, p. 217, § 808; Ib., p. 214; Savacool v. Boughton, 5 Wend. 170; Humes v. Taber, 1 R. I. 464; Owens v. Starr, 2 Litt. (Ky.) 231.

2. The damages were excessive. The value of the machine was only $50, according to the petition. There was no evidence that any damage was done to plaintiff's property, but the testimony was that everything was done in a quiet and orderly manner; that Scruggs told plaintiff what he had come for, and the plaintiff gave him permission to go into his house and get the machine, and told his wife to give it to him; and that Scruggs took the machine and left.

J. R. Edwards for respondent.

1. The affidavit for appeal did not comply with the statute. It was not made by the appellant or his agent. R. S., § 3712; Clelland v. Shaw, 51 Mo. 440.

2. The warrant was no protection to the officer,

because it was not founded on a proper affidavit, (R. S., §§ 2000, 2001,) and because it did not authorize him to search plaintiff's house. Turner v. Franklin, 29 Mo. 285.

HENRY, J.

This suit was instituted by Melcher in the Cole circuit court against the Singer Manfg. Co., Jno. W. Scruggs and Charles Eaton, to recover damages for entering his house in Jefferson City, and taking and carrying away a sewing machine alleged to be of the value of fifty dollars, and for breaking doors, making a noise and otherwise disturbing the peace of his family. The defendant Scruggs' defense was that he was constable of Jefferson township, and without breaking doors, or otherwise disturbing the family, peaceably entered the house to execute a search warrant issued by J. B. McHenry, a justice of the peace for said township, commanding search to be made in the plaintiff's house in said township for, and if found, seizure of, the sewing machine in question, particularly described in said warrant. The answer of the Singer Manf. Co. contained a general denial and the following special facts: That it was the owner of the machine in question, that it was feloniously embezzled by one Gilmore, and that plaintiff received and concealed it in his house, and that on request of the company, one Vaughn made an affidavit before McHenry, a justice of the peace, stating said facts, on which the justice issued a search warrant, and that neither said company nor any of its agents assisted in the execution of said warrant. Replications to these several answers were filed by plaintiff, denying the special facts alleged therein, and on a trial of the issues, there was a verdict for plaintiff, and in accordance therewith a judgment in his favor for $150, from which defendants Scruggs and the company have appealed.

Eaton filed no answer; but there was no judgment by default, or final judgment taken against him, nor was the suit dismissed as to him.

1. SEARCH WARRANT, A PROTECTION TO OFFICER EXECUTING IT, WHEN.

The instructions given by the court were unobjectionable, but one asked by defendant, and refused, should have been given. It was as follows: “The jury are instructed, that if they believe from the evidence, that defendant Scruggs was acting as constable at the time of taking the machine in controversy, and had a writ, or search warrant, issued by a justice of the peace in said Cole county, Missouri, then such warrant was a protection and justification to said Scruggs for his acts done thereunder, notwithstanding the writ may have been irregularly issued.” There was no evidence that Scruggs had been guilty of abusing the process, or that he did more than peaceably enter the house and demand the machine, which was delivered to him by the plaintiff. The only question therefore is whether the warrant was a justification for what he did. The affidavit made by Vaughn was insufficient to authorize the issuance of a warrant. It did not allege that the machine was stolen or embezzled, but that on or about the first day of July, 1875, one G. W. Gilmore, or some other person unknown, conveyed the machine to Melcher, and that it was supposed to be in Melcher's possession, in Jefferson township, Cole county, and that the affiant had reasonable grounds to suspect, and did suspect, that the same was concealed with Nicholas Melcher in said township and county. Upon this the warrant issued by the justice of the peace was as follows:

STATE OF MISSOURI,

)

)

SS.

Search Warrant.

COUNTY OF COLE.

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The State of Missouri to the Constable of Jefferson township, in the county aforesaid, greeting:

Information having this day been given to James B. McHenry, as justice of the peace, within and for Jefferson township, in the county of Cole, by W. R. Vaughn, special agent of the Singer Manufacturing Company, of 404 North Fifth street, St. Louis, Missouri, that the following Singer sewing machine, No. 1,092,558, the property of said company, that is to say, was on or about the first day of July, 1875, by G. W. Gilmore, or some person unknown to them, conveyed and concealed in the house of Nicholas Melcher, in the county aforesaid, and in the city of Jefferson. And the said W. R. Vaughn, special agent the Singer Manufacturing Company, of No. 404 North Fifth street, St. Louis, has reasonable grounds to suspect, and does suspect, that the said Singer sewing machine 1,092,558 is concealed on the said premises of Nicholas Melcher, at Jefferson City, in the township and county aforesaid. These are, therefore, to command in the day time, and into the place of concealment in the township and county aforesaid, and there diligently search for the said sewing machine 1,092,558, and if the same be found, or any part thereof, to bring such as may be found before said justice, in the township and county aforesaid, without delay, to be disposed of there according to law, and have you then and there this writ.

Witness, my signature, this 21st day of March, 1876.

JAMES B. MCHENRY,

Justice of the Peace.

Section 1, Wagner's Statutes, 1116, is as follows: “Upon complaint being made, on oath, to any officer authorized to issue process for the apprehension of offenders, that any personal property has been stolen, or embezzled, and that the complainant suspects that such property is concealed in any particular place or house, if such magistrate be satisfied that there is reasonable ground for such suspicion, he shall issue a warrant to search for such property.” Section 2 provides that the warrant shall be directed to the sheriff of the county, or any constable of the township, and command him to search the place where such property is suspected to be concealed, in the day time, designating the place and particularly describing the property.

The doctrine announced in Savacool v. Boughton, 5 Wend. 173, that “if a mere ministerial officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it,” has been so often approved by this court, that it may be regarded as well established here. In the case of Milburn v. Gilman, 11 Mo. 68, in a separate concurring opinion, Napton, J., held that an order of sale of a steamboat, which had been bonded, and, therefore, discharged from the jurisdiction of the court, the facts appearing upon the face of the order,...