Sheeley v. Wiggs

• Decision Date: 31 July 1862
• Citation: 32 Mo. 398
• Parties: SHEELEY, Plaintiff in Error, v. WIGGS et al., Defendants in Error.
• Court: Missouri Supreme Court

32 Mo. 398

SHEELEY, Plaintiff in Error,

v.WIGGS et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Callaway Circuit Court.

Hockaday & Hayden, for plaintiffs in error.

I. Admitting that the proceedings in the County Court

were in all respects legal and proper, the evidence showed that Minor was constable de facto. That from his election in 1858, to the expiration of his term of office, in 1860, he was in the actual and notorious exercise of his office, and had never been ousted therefrom. The order of the County Court declaring the office vacant did not oust him from the office, which could be done only by quo warranto.“When an officer is sued for malfeasance in office, it is enough to show that he is an officer de facto; his not being so de jure is not an objection that can be made available to defeat, or in any manner affect, the interests of third persons.”“If the law holds the officer liable, there is no principle on which his securities can be discharged.” (State, to the use of Moutrey's administrator v. Muir, 20 Mo. 303; St. Louis County v. Sparks, 10 Mo. 117; 3 Johns. 431; 7 Johns. 549; Cowan & Hill's Notes, 555; 9 Wend. 17; 3 Scam. 483; 4 Tenn. 366; 1 Pick. 273; 4 Mass. 60; 7 Mass. 123; 11 Mass. 207; 15 Mass. 200; 13 Mass. 295; 24 Wend. 525; 6 Wend. 422; 9 Johnson, 135; 1 Hill, 674; 5 Hill, 616; 3 Littell, 458; 3 Littell, 316.)

II. But Minor, the constable, was not only an officer de facto, but an officer de jure, in the lawful, notorious and exclusive exercise of its duties; had been elected regularly, and had, in compliance with the law, given a bond, with the defendants as his securities, for the faithful discharge of such duties. It is urged, however, that the County Court divested him of his office, for that they did on the 6th day of February, 1860, in an ex parte proceeding, without any previous notice, order him to give a new bond in the sum of ten thousand dollars by 11 o'clock on the 8th day of February following, giving him, excluding the day on which the order was made, one entire day to give the new bond, and duly served a copy of the order upon him upon the day the order was made. He told them by his letter, carefully preserved among the records of the court, that he was not prepared to give a bond in the sum of ten thousand dollars upon so short a notice, to say nothing of the fact that no legal inquiry had been instituted, according to the usual forms of law, to discover whether the bond already given was not sufficient to cover executions ““soon to come” to his hands. The office is thereupon declared vacant, and on the 11th day of February, 1860, an appointment was made to fill the vacancy. On the 21st day of February the court rescinded the order declaring the office vacant, and Minor filed an additional bond. He did not give additional security, but filed an additional bond, which meant simply a bond in addition to the one already given, so as to cover the excess of executions which might come to his hands, the evident intention being to enlarge the penalty by an additional bond, and not to substitute the new bond for the former bond and discharge the old bond. This appears the more evident from the fact that the old bond was in a penalty of five thousand dollars and the new bond in a like penalty, making in total the sum required, ten thousand dollars. To place any other construction upon the order would stultify the whole proceeding; because to substitute a new bond with the same penalty with the old bond, as there was no pretence that the securities on the old bond were not perfectly solvent, would not have attained the object which the County Court desired to arrive at, i. e. to so enlarge the penalty as to cover executions “““soon to come” to the hands of the officer. If the object had been to discharge the old bond by taking the new, none of the proceedings show a conformity to either section of the statute upon which it is supposed the proceedings were based. (1 R. C., title Constables, § 3 & 4; 2 R. C., title Securities, § 23 & 24.) Both of these summary proceedings contemplate a case where the securities, or some one of them, in an official bond, have become non-resident, insolvent, or insufficient, and not to a case where the securities, being solvent and unobjectionable, the penalty of the bond is not large enough to cover anticipated liabilities which may possibly accrue. The penalty of the old bond was not large enough, the order says, to secure such amounts as were “soon” to come to the hands of the constable, and they did accept from him, on the 21st of February, a bond to cover the excess, not as a new bond, upon the filing and approval of which the old bond was to be discharged, and upon which the entire liability of the officer to the community should rest, but as an additional bond. The statute under which the proceedings were had contemplated that notice should be served upon the constable before the day set for hearing, to show cause why he should not be required to give a new bond. By a proceeding inverso ordine they first make the order and then notify him of what they had done, and give him, by the most favorable construction, one day to obey the order, or show cause to the contrary, thereby throwing the burden of proof upon him, to show that he would not soon receive executions to a greater amount than the penalty of the old bond. Not being prepared either to prove a negative, or to give so large bond upon so short a notice, his office is declared vacant. A judgment rendered against a party who has no notice of the proceeding is absolutely void. (Anderson v. Brown, 9 Mo. 638; 7 Mo. 463.) This principle applies to the order of February 6, requiring Minor to give a new bond. The order of the 8th of February, to which it is pretended that Minor waived notice by his letter, amounts to nothing, because that order simply declares “the office vacant,” a power which the County Court did not possess. The statute gave them no power to declare the office vacant, but that vacancy, by the express language of the statute, was simply a consequence which the law annexed to the default of the constable in failing to give a new bond when required by the order of the court to do so. If in no other words, after Minor had written a letter waiving, either expressly or impliedly, the want of notice, and they had at that time ordered him to give a new bond upon a day in such order specified, if he had failed to do so, his office, by force of the positive language of the statute, would have been vacant. This, howover, is all based upon the assumption that some of the facts contemplated in the sections of the statute referred to, such as death, insolvency, removal from the State, &c., appeared to the court in order to give jurisdiction; it being a special statutory proceedings, and of a summary character, the jurisdiction could not be enlarged so as to include a case like this, not within its purview by even the remotest implication. But, assuming that the court had jurisdiction at a special term of the court, and without notice to Minor, and without any fact appearing as to the sufficiency of the securities of the old bond, as mentioned in the statute, to require a new bond with a larger penalty; if the order was simply irregular, or a portion void for want of legal notice, they had power to rescind the order, and they had the power to accept a bond additional to that already given, which it is presumed would be good, independent of any proceedings under the sections referred to of the statute. (Jones...