Perryman v. State ex rel. Relfe

• Decision Date: 31 July 1843
• Court: Missouri Supreme Court
• Parties: PERRYMAN ET AL. v. THE STATE, TO USE OF RELFE, ADM'R, &c.

8 Mo. 208

PERRYMAN ET AL.

v.THE STATE, TO USE OF RELFE, ADM'R, &c.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO WASHINGTON CIRCUIT COURT.

NAPTON, J.

This was a suit instituted in the name of the State, to the use of James H. Relfe, administrator of M. T. Hunter, deceased, against the plaintiffs in error, upon the official bond given by Perryman and his securities, for the faithful discharge of his duties in the office of constable of Bellview township The breaches assigned in the declaration were, first, that Mary Hunter, then administratrix of the estate of the said Matthew T. Hunter, on the 7th March, 1840, recovered a judgment against one McGuire for one hundred and fifty-five dollars and seventy-five cents, and on the 30th April, 1840, sued out execution, which was delivered to the constable, and said constable failed to levy according to the command of said writ; secondly, and thirdly, that two other judgments were obtained before the same justice, and executions duly issued to the said constable, and he failed to levy on the property of defendant in the execution. The defendants pleaded nil debet, and performance generally. The court, sitting as a jury, found the issues for the plaintiff, and assessed his damages at one hundred and ninety-two dollars. A motion for a new trial was made, and overruled, and the whole testimony was preserved by bill of exceptions.

The plaintiff offered in evidence the docket of D. Hanger, a justice of the peace, from which it appeared that three several judgments had been obtained by Mary Hunter, administratrix, as aforesaid, against one John P. McGuire, upon which judgments executions were issued, and returned “Property levied on, but found not to be the property of the defendant, on the 23rd May, 1840. D. E. PERRYMAN.”

The executions themselves were not given in evidence; and it also appears, that each of the judgments were by default, and the service of the summons in each case was “by acknowledgment.”

It was also proved, that about the first of May, 1840, McGuire, the defendant in the executions, was in the possession of two horses, worth one hundred dollars each, and the wood-work of a wagon worth thirty dollars, which horses and wood-work witness believed to be McGuire's. It was also proved, that whilst the executions were in the hands of Perryman, and had been levied on the property found not to belong to McGuire, he was directed by James H. Relfe, to levy the same on the horses aforesaid, and that there was sufficient time, when such directions were given, for the constable to have levied on and sold the same before the return day of the execution.

To reverse this judgmeut, it is...