Ostmann v. Frey

• Decision Date: 03 May 1910
• Citation: 128 S.W. 257,148 Mo. App. 284
• Parties: OSTMANN v. FREY et al.
• Court: Missouri Court of Appeals

128 S.W. 257

148 Mo. App. 284

OSTMANN v. FREY et al.

St. Louis Court of Appeals. Missouri.

May 3, 1910.

1. JUSTICES OF THE PEACE (§ 135)— EXECUTION —INJUNCTION.

Injunction will not lie to restrain a justice of the peace issuing an execution; his act in doing so being judicial.

2. EXECUTION (§ 171)—RESTRAINING REMEDY AT LAW BY REPLEVIN.

Injunction will not lie to restrain further proceedings by a constable on an execution levied by him, though the execution was issued after the judgment was superseded by a perfected appeal, and the levy was under such circumstances that the constable would not be liable for damages; there being an adequate remedy at law, by replevin for the property.

Appeal from Circuit Court, St. Charles County; Jas. D. Barnett, Judge.

Suit by Henry Ostmann against Max J. Frey and another. Judgment for defendants. Plaintiff appeals. Affirmed.

W. H. Clopton, for appellant. T. C. Bruere, for respondents.

NORTONI, J.

This is a suit in equity. Plaintiff sought an injunction in the circuit court against defendant Frey, a justice of the peace, and defendant Meyer, his constable. After issue joined and full proof, the court denied the writ. Plaintiff prosecutes the appeal.

The justice, Frey, issued an execution against the present plaintiff for costs incident to a judgment of conviction against him in the justice court in which plaintiff was required to give a peace bond. The defendant constable levied this execution on certain personal property of plaintiff and advertised the same for sale to satisfy the cost bill in that case. The object and purpose of the injunction prayed for is to restrain further proceedings under this execution.

It appears plaintiff had been convicted in the court of Frey, the justice of the peace, on a charge of having threatened great bodily harm against one Schafer, and was required to give a bond conditioned to keep the peace towards Schafer and all the people of the state. After the jury had returned a verdict in that proceeding, plaintiff avers he informed the justice of his desire to appeal from the judgment and performed all of the conditions on his part toward perfecting an appeal to the circuit court. The petition recites that plaintiff executed and delivered the necessary affidavit and proper recognizance for appeal to the justice immediately after the trial and on the same day of his conviction, that the justice approved the same, but failed to enter the filing of the papers in his docket, and omitted as well to enter an order in his docket granting the appeal. And, notwithstanding such appeal was duly perfected by plaintiff, defendant Frey issued an execution for the costs accrued in such case, and defendant Meyer, the constable, has levied the same on his personal property and advertised it for sale. It is averred that by virtue of such appeal the justice of the peace lost jurisdiction in the premises and the same vested in the circuit court.

The theory of the case presented by plaintiff is that the judgment of the justice of the peace on which the execution for costs was issued against him was superseded and vacated by his filing the necessary affidavit and bond for appeal therefrom to the circuit court. In other words, it is urged that, although the judgment originally rendered against him in the justice court was valid, it was rendered ineffective by virtue of his appeal, so that it now stands as a judgment void at law without force as authority for the issue and consequent levy of the execution.

The propriety of this proceeding against the justice of the peace may be disposed of in a few words under the authority of our Supreme Court, for, whatever the rule as to such matters may be elsewhere, it has been pointedly decided by the superior court of this state that a justice of the peace acts judicially in issuing an execution. That case declares that under our statutes the act of the justice in issuing an execution is not ministerial, but, on the contrary, is judicial in character. Wertheimer v. Howard, 30 Mo. 420, 77 Am. Dec. 623. This decision is conclusive on the Courts of Appeals as to the matter involved in the judgment there given. As a result of that doctrine, no injunction will lie against the justice to the end of restraining him from issuing the writ of execution. It is the universal rule that, when an injunction is granted to stay proceedings in a court of law, it does not operate as a restraint to such court in the exercise of its jurisdiction. In such cases, the...