St. Louis Dairy Co. v. Sauer
| Decision Date | 10 June 1884 |
| Citation | 16 Mo.App. 1 |
| Parties | ST. LOUIS DAIRY COMPANY, Respondent, v. JULIUS SAUER, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, THAYER, J.
Affirmed.
B SCHNURMACHER and FINKELNBURG & RASSIEUR, for the appellant The main purpose of the act is to protect the officer from litigation, upon his procuring from the plaintiff in the execution or attachment an indemnity bond upon which the claimant may bring suit.-- TheState to use v Lentzinger, 41 Mo. 498;TheState v. Platt, 52 Mo. 466;Act of 1855 and Amendatory Act of1859, 2 Rev. Stats. 1554(Appendix).The claimant may bring suit upon the bond in question, although it is made payable to the officer instead of the state.-- The State to use v. Thomas,17 Mo. 503;TheState to use v. Donnelly, 9 Mo.App. 520.
A. & J. F. LEE, JR., for the respondent: This act of March 3, 1855, making compliance with its provisions a bar to a plaintiff's recovery of his own property being derogatory of common right and a statute prescribing a form of procedure must be strictly construed.--Sedgwick on the Construction of Statutory and Constitutional Law, 267 and 275;Co. Inst., 282b, L. 3, S. 485;Crayton v. Munger,11 Tex. 234.A claim, to be of avail, must be in the statutory form.-- Bradley v. Holloway,28 Mo. 150.
This was an action of replevin for a horse, wagon, and harness.The plaintiff having made the affidavit and given the bond required by law, the property was delivered to him by order of court.The defendant's answer sets up, that he is a constable of the city of St. Louis, and had levied upon the property as the property of defendant in a certain execution in his hands issued upon a judgment of a justice of the peace against one Cabanné ; that the plaintiff in this action claimed the property under the provisions of the sheriff and marshal's act of 1855; whereupon the plaintiff in the action before the justice, gave to this defendant a good and sufficient indemnification bond, as provided by that act.The reply is a general denial.The cause was tried without a jury, and there was a finding and judgment for nominal damages, and that plaintiff retain the property.
The claim offered in evidence seems to be in the language of the statute.The claim, after its address to the constable, proceeds thus: " Sir: Take notice that I, the St. Louis Dairy Co., claim," etc.It concludes thus:
The bond, which was offered in evidence by defendant and excluded by the court, is as follows: etc.The condition under written, is that of the usual indemnification bond prescribed by the statute.The bond is signed as follows:
The testimony as to the execution of the bond is that of Jacob Rowak, as follows:
It is claimed by respondent that the evidence did not establish the defence set up: 1.Because the claim shown is insufficient.2.Because no authority appears in Rowak to execute the bond in the name of the principals.3.Because even if good as a common-law bond, the bond does not comply with the statute.
One whose property is seized on execution directed against another, need not proceed to claim under the provisions of the special act of the 3d of March, 1855.He may, if he chooses, begin an action of replevin, disregarding his remedy under the act.If, however, he proceeds under the act, and makes a valid claim, and the officer in accordance with the act receives a sufficient indemnification bond from the plaintiff in the execution, then the claimant has no remedy against the officer, but must resort to his action on the bond.Bradley v. Holloway,28 Mo. 150.
The claim which will have the effect of confining the claimant to the remedy on the bond, and which will deprive him of his right to replevy his property, must be a claim in conformity to the statute.There can be no legal difference between making no claim, and making a claim which is not in conformity with the statute, and so it is held in the case just cited.Whether the claim in evidence in this case can be regarded as verified by the affidavit of the claimant or of the agent of the claimant, we need not determine.
The statute requires a bond.The term bond imports an obligation in writing under seal.There can not be a bond without seal and an instrument which speaks of a seal, but which has no seal or scroll, is held in Missouri not to be a specialty, and to be an instrument that can not be sued upon as a bond.TheState ex rel. v. Clay Co.,46 Mo. 231;TheState ex rel. v. Thompson, 49 Mo. 188.It is well settled, wherever the distinction between a specialty and a simple contract is preserved, according to the common-law doctrine on the subject and the recognized principles of agency, that an authority to an agent to execute an instrument under seal, whenever this is not done in the actual presence of the principal, must itself, in all cases, be under seal.Heirs, etc., v. McCullough, 1. M. L. 69;Hibblewhite v. McMorine,6 Mees. & W. 200.And a subsequent ratification must also be under seal, on the same reasoning and the same authority of the common-law decisions.Wells v. Evans,20 Wend. 251.However, a court of equity might undoubtedly compel the principal to confirm and give validity to the deed.McNaughton v. Partridge,11 Ohio 223.It is true that the courts in modern times have abated something of their former respect for the seal; and it would be difficult to say now with precision what is the general American doctrine on the subject.In some states a sealed instrument has perhaps ceased to be anything more than a simple contract.But this can not be said of Missouri, where it is expressly held, and in recent times, that, however a bond may vary from the statute, and be a good common-law bond, it can neither be a statutory nor a common-law bond without the seal; and that the sureties on an attachment bond will not be liable thereon where the instrument is...
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