Owls' Nest v. Haines

• Decision Date: 03 May 1915
• Docket Number: No. 11526.,11526.
• Citation: 176 S.W. 513,189 Mo. App. 433
• Parties: OWLS' NEST v. HAINES.
• Court: Missouri Court of Appeals

176 S.W. 513

189 Mo. App. 433

OWLS' NEST v. HAINES.

No. 11526.

Kansas City Court of Appeals. Missouri.

May 3, 1915.

Rehearing Denied May 24, 1915.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by the Owls' Nest against Evan Haines. From a judgment for defendant, plaintiff appeals. Affirmed.

B. E. Cowherd, of Huntsville, and O. R. O'Bryan, for appellant. Hemp Rothwell and Jerry M. Jeffries, both of Moberly, and Norman C. Johnston, of Huntsville, for respondent.

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 was regular on its face, and was levied by defendant. Judgment was thereafter rendered against plaintiff for $1.00. 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 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 (top page 87); Burton v. Sweaney, 4 Mo. 2, 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, 28 A. St. Rep. 440; St. L. & S. F. Ry. v. Lowder, 138 Mo. 533, 536, 39 S. W. 799, 60 Am. St. Rep. 565; Merchant v. Bothwell, 60 Mo. App. 341; State ex rel. v. Rainey, 99 Mo. App. 229, 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 al 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, 6 Conn. 140, 145, 23 Am. Dec. 324, 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 of inquiry into causes of action, contained in the writs and declarations put into his hands for service. ...