State ex rel. Cantwell v. Stark

• Citation: 75 Mo. 566
• Parties: THE STATE ex rel. CANTWELL et al., Appellants, v. STARK.
• Decision Date: 30 April 1882
• Court: United States State Supreme Court of Missouri

75 Mo. 566

THE STATE ex rel. CANTWELL et al., Appellants,

v.STARK.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Boggess, Cravens & Moore, C. W. Sloan and R. T. Railey for appellants.

Granting that the whole of the Texas cattle law was unconstitutional and void; that the justice had no jurisdiction of the subject matter of the suit on account of the amount involved; that all the process and proceedings had and made by him were void; and that he, the constable, and all concerned therein were trespassers, and still the bond was not void. It was not authorized, required or taken by reason of or pursuant to any provision of the Texas cattle law; hence, was not dependent thereon for its validity, and consequently could not be invalidated thereby. It was made by parties capable in law of making the same and binding themselves by its provisions. It was executed pursuant to section 5, page 182, Wagner's Statutes. It was taken by an officer authorized and required to take such a bond, as a condition precedent to issuing a writ of attachment. It was not taken by and to the officer as a consideration for his doing an unlawful act; but to the State as an indemnity to a certain designated class of persons, against the consequences of wrongfully suing out and wielding the writ of attachment. It was voluntarily made by defendants for the purpose aforesaid and needed no consideration for its support. There is no statute which forbids the making or impairs the validity of such bonds. These obligors by means of it obtained the attachment; with that they seized relators' property to their damage, and compelled them, as the only lawful method of regaining the possession to incur the damage and pay the expenses, for which they now sue. Shall defendants escape the legitimate consequences of their wrongful and injurious conduct because they proceeded under an unconstitutional statute and in a court without jurisdiction? Henoch v. Chaney, 61 Mo. 129; Barnes v. Webster, 16 Mo. 258, 265; Williams v. Coleman, 49 Mo. 325; State v. Thomas, 17 Mo. 503; Graves v. McHugh, 58 Mo. 499; Henry v. State, 9 Mo. 769; State v. Hesselmeyer, 34 Mo. 76.

Wooldridge & Daniel for respondents.

The supposed law under which the action was commenced before the justice being unconstitutional and void, the justice had no jurisdiction of the subject matter of the action, and no authority to receive, exact or approve the bond sued on. It is, therefore, without any valid consideration and void, and no action can be maintained upon it. Bayless v. Bank, 15 Ohio 606, 619; Benedict v. Bray, 2 Cal. 251; State v. Randolph, 26 Mo. 213; State v. Ferguson, 50 Mo. 409; Adams v. Wilson, 10 Mo. 341; Garnet v. Rodgers, 52 Mo. 145; Kinsar v. Shands, 52 Mo. 326; Moore v. Damon, 4 Mo. App. 111; Hessey v. Heitkamp, 9 Mo. App. 36; Cooley Const. Lim., (4 Ed.) side p. 188; 2 Hilliard on Torts, (3 Ed.) p. 189, § 3; C. & A. R. R. Co. v. Erickson, 91 Ill. 613; s. c., 33 Am. Rep. 70; Thompson v. Lockwood, 15 John. 256; Cable v. Cooper, 15 John. 152; Harris v. Simpson, 4 Littell 165; Sherry v. Foresman, 6 Blackf. 56; Moore v. Allen, 3 J. J. Marsh 621; Homan v. Brinckerhoff, 1 Denio 184; Parker v. Henderson, 1 Ind. 62; Blackman v. State, 12 Ind. 556; Cassell v. Scott, 17 Ind. 514; Caffrey v. Dudgeon, 38 Ind. 512; Marshall v. State, 8 Blackf. 162; State v. Lynch, 6 Blackf. 190; Silver v. Governor, 4 Blackf. 15; Tarbell v. Gray, 4 Gray 444; Green v. Haskell, 24 Me. 180; Libby v. Main, 2 Fairf. 344; Bridge v. Ford, 4 Mass. 641; Barnes v. Whittaker, 45 Wis. 204; Dillard v. St. L., K. C. & N. R'y Co., 58 Mo. 69; Freeman on Executions, § 100 and note; Byers v. State, 20 Ind. 47; Germond v. People, 1 Hill 343; Perry v. Henley, 14 B. Mon. 474; Buckingham v. Bailey, 4 Sm. & M. 538; Olds v. State, 6 Blackf. 91; Willey v. Strickland, 8 Ind. 453; Gregg v. Wooden, 7 Ind. 499; Ohio, etc., R. R. Co. v. Hanna, 6 Ind. 391; Wilson v. Hobday, 4 M. & S. 121; Myers v. State, 19 Ind. 127; Macey v. Titcomb, 19 Ind. 135.

HENRY, J.

This is a suit on an attachment bond executed by defendants in an attachment proceeding instituted by Stark and Merriott against relators, before a justice of the peace in Bates county, to recover $800 damages to stock of said Stark and Merriott, by reason of the communication of the Texas or Spanish fever to said cattle, by Texas, Mexican or Indian cattle, unlawfully brought into this State by said relators. The attachment bond contained the statutory stipulations, and on the trial in the circuit court, to which the cause was appealed, that court held that relators could not maintain an action on the bond, because the act under which the principal suit was prosecuted, and in which the bond was given, was unconstitutional and void.

That act has been declared void by the Supreme Court of the United States, and its decision has been followed by this court in several recent cases. Gilmore v. R'y Co., 67 Mo. 323; McAllister v. Chicago & R. I. R. R. Co., 74 Mo. 352; Railway Co. v. Husen, 95 U. S. 465; Urton v. Sherlock, Sherlock, 75 Mo. 247. In the last of these cases it was held that the entire act is a nullity. Many cases have been cited by respondents' counsel in support of the ruling of the circuit court. Benedict v. Bray, 2 Cal. 254, and numerous cases decided by the supreme court of Indiana, are to that effect; but in McDermott v. Isbell, 4 Cal. 114, the court observed: “It has been frequently held by this court that a party who avails himself of the process of an inferior court, cannot escape the responsibility of his own act, upon the ground that such tribunal had no jurisdiction over the subject matter in controversy. Consequently a party who sues out a writ of replevin from a justice of the peace having no jurisdiction, and obtains the property in an action on the replevin bond cannot set up as a defense the want of jurisdiction of the justice.” In Caffrey v. Dudgeon, 38 Ind. 516, the court remarks that: “It is the settled law of this state, that where a bond or recognizance is taken by an officer or court acting simply under statutory power, the instrument taken must be authorized by the statute, or it will be void, and in suing upon such an instrument, the complaint must set out the facts showing that the bond or recognizance was taken in a case where the law authorized it; and in many cases, it must appear that it was taken exactly or substantially in accordance with the statutory power.” Such, however, is not the doctrine on that subject...