Nest v. Haines

• Decision Date: 03 May 1915
• Citation: 176 S.W. 513,189 Mo.App. 433
• Parties: OWLS NEST, Appellant, v. EVAN HAINES, Respondent
• Court: Kansas Court of Appeals

176 S.W. 513

189 Mo.App. 433

OWLS NEST, Appellant, v. EVAN HAINES, Respondent

Court of Appeals of Missouri, Kansas City

May 3, 1915

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

B. E Cowherd and O. R. O'Bryan for appellant.

(1) The justice had no jurisdiction of the subject-matter for the reason that no affidavit was filed. Norman v. Horn, 36 Mo.App. 419; Hargadine v. Van Horn, 72 Mo. 370; Burnett v. McCluey, 78 Mo. 676; Bank v Garton, 40 Mo.App. 113. (2) The justice had no jurisdiction of the person of appellant for the reason that no process was served as provided by law. R. S. 1909, sec 7641, 7646, 7647. (3) Process can only be served on corporation by delivering a copy. Reading process to an official is no service on corporation. R. S. 1909, sec. 7423. (4) An officer cannot justify his action in serving process unless the court from which it emanates had jurisdiction. Warrensburg v. Miller, 77 Mo. 56; Howard v. Clark, 43 Mo. 344; Norman v. Horn, supra.

Hamp Rothwell, Jerry M. Jeffries and Norman C. Johnston for respondent.

(1) The affidavit of attachment filed was sufficient. Gilkerson v. Knight, 71 Mo. 209; Johnson v. Gilkerson, 81 Mo. 55; R. S. 1909, sec. 2341. (2) A justice of the peace has jurisdiction to issue attachment in any case within the township, wherein the property, credits, or effects of the defendants or either of them may be found or in any adjoining township. R. S. 1909, sec. 7636; State ex rel. v. Rainey, 99 Mo.App. 229. (3) The writ of attachment cannot be collaterally attacked. Shea v. Shea, 154 Mo. 607. (4) An execution or attachment regular on its face and emanating from a court having jurisdiction of the subject-matter will justify an officer in making a levy. He is not bound to go behind the writ and inquire whether the judgment upon which it is issued is regular. Higdon v. Conway, 12 Mo. 295; State ex rel. v. Rainey, supra; Howard v. Clark 43 Mo. 344.

OPINION

ELLISON, P. J.

Defendant is a constable for Salt Spring township, Randolph county, and plaintiff's action against him is for an alleged conversion of plaintiff's property. The judgment in the trial court was for the defendant,

A. F. Gill, Esq., was the magistrate for the township and, as such, issued a writ of attachment in an action of Rothwell v. The Order of Owls, Huntsville Nest. The attachment writ was regular on its face, and was levied by defendant. Judgment was thereafter rendered against plaintiff for $ 100. The justice then issued an execution on this judgment, which was delivered to defendant and executed by him. This writ also was regular on its face. It is claimed by plaintiff that there were irregularities in the proceedings before the justice in the matters preceding the attachment writ, among others that there was no affidavit for attachment. There was an affidavit, but it is claimed to be void, in that, as stated by plaintiff, it was sworn to by plaintiff by "proxy," that is, by plaintiff "by his attorney."

The justice had jurisdiction of the cause of action and jurisdiction to issue attachments in such causes. The writ of attachment, as stated, was regular on its face. After the judgment was rendered an execution was issued against the attached property, and it, too, was regular on its face, so far as any material defect was concerned. In these circumstances the writs afforded complete protection to defendant. [Brown v. Henderson, 1 Mo. 134; Burton v. Sweaney, 4 Mo. 1, 3; Higdon v. Conway, 12 Mo. 295; Howard v. Clark, 43 Mo. 344; Melcher v. Scruggs, 72 Mo. 406; State ex rel. v. Devitt, 107 Mo. 573, 576, 17 S.W. 900; St. L. & S. F. Ry. v. Lowder, 138 Mo. 533, 536; Merchant v. Bothwell, 60 Mo.App. 341; State ex rel. v. Rainey, 99 Mo.App. 218, 73 S.W. 250.]

A constable's office would be a hazardous trust if he, at his peril, was compelled to determine the legality and regularity of the proceeding antedating his writ. When, in due course, a constable receives a writ, regular on its face, which he is commanded to execute, his only inquiry is, has the court issuing it jurisdiction of such cases, i. e., the subject-matter? Whether the defendant has been properly summoned and whether the papers in the cause are in legal form are frequently matters difficult to decide and the law has left their decision to the courts and not mere executive officers.

Nor do we think the fact that plaintiff notified the constable of defects in the prior proceedings affects the application of the law as above stated. We referred to the question of notice aliunde the writ in State ex rel. v. Rucker, 19 Mo.App. 587, without deciding it. But the law and the reason of the matter protects the officer notwithstanding he may be notified of defects in the proceedings prior to his writ. In Milburn v. Gilman, 11 Mo. 64, 68, Judge SCOTT said: "Surely if a sheriff is bound to execute erroneous process, the knowledge of the fact that it is erroneous, will be no justification for his refusal to act. This has always been so ruled, and is now incontrovertible law."

In Watson v. Watson, 9 Conn. 140, 145, the court in speaking of a constable, said, that "it became his duty regardless of any knowledge or supposed knowledge of his own. . . . He has no portion of judicial authority, nor the means into inquiring into causes of action, contained in the writs and declarations put into his hands for service. Obedience to all precepts committed to him, to be served, is the first, second and third part of his duty; and hence, if they issue from competent authority, and with legal regularity, and so appear on their face, he is justified for every action of his, within the...