State ex rel. Clement v. Rainey

• Decision Date: 03 March 1903
• Citation: 99 Mo. App. 218,73 S.W. 250
• Parties: STATE ex rel. CLEMENT v. RAINEY et al.
• Court: Missouri Court of Appeals

73 S.W. 250

99 Mo. App. 218

STATE ex rel. CLEMENT v. RAINEY et al.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

LANDLORD AND TENANT—ACTION FOR POSSESSION—RENT—JUSTICES OF THE PEACE—JURISDICTION — EXECUTION — CONSTABLES —FAILURE TO SERVE — DEFENSES — ACTION ON BOND.

1. Where relator's attorney, who had prosecuted relator's claim to judgment, directed the constable to return an execution without putting relator in possession of certain premises as commanded by the writ, relator could not maintain an action against the constable and his bondsmen for failure to execute the writ.

2. In an action against a constable for failure to execute a writ, the recital in the constable's return to the writ that he returned the same by direction of plaintiff's attorney, in order that another execution might be issued to another constable, was only prima facie evidence of such fact.

3. Where, in an action against a constable for failure to execute a writ, the constable claimed that it was returned unexecuted, at the direction of plaintiff's attorney, in order that an alias writ might be issued to another constable. while plaintiff claimed that the constable refused on request to execute the writ, whereupon plaintiff's attorney told him that, if he did not intend to serve it, he should return it, in order that another execution might be issued to another constable, whether the execution was returned by order of plaintiff's attorney was a question for the jury.

4. Where alias executions delivered to a constable, directing him to collect a certain judgment for rent, and place plaintiff in possession of the property sued for, were regular and valid, the constable was not justified in refusing to execute the writ for irregularities in the judgment or proceedings anterior thereto.

5. Where an action was brought before a justice of the peace by a landlord to recover possession of the premises, and the amount of rent due as authorized by Rev. St. 1899, § 4131, and the summons was properly served, the justice had jurisdiction of the subject-matter, and having rendered judgment for plaintiff, awarding possession, a constable to whom an alias execution, directing that plaintiff be put in possession of the property, was delivered, was not justified in refusing to serve the same on the ground that the judgment was not within the justice's jurisdiction.

6. Where a landlord brought suit in a justice's court to recover possession, and for rent due, as authorized by Rev. St. 1899, § 4131, the fact that plaintiff obtained in such action a landlord's attachment, under section 4123, on a summons not returnable in less than 10 days, as required in actions by attachment by section 3862, did not deprive the justice of jurisdiction to render judgment for the rent due and for possession.

7. Where a statement filed with a justice in an action for rent and possession stated that defendant had attorned to plaintiff by paying rent to him, it was not objectionable for failure to allege that the relation of landlord and tenant existed between plaintiff and defendant.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by the state, on relation of Eugene Clement, against Dan Rainey and others. From a judgment in favor of defendants, relator appeals. Reversed.

Butts & Lydy, for appellant. Allen, Rathbun, Hamlin, Mason & Patterson, for respondents.

Statement of Facts and Opinion.

GOODE, J.

The relator, Clement, instituted this action against the defendant Rainey, as constable of Campbell township, Greene county, Mo., to recover damages on account of the failure of said Rainey to serve two executions issued by S. Brooksbank, a justice of the peace of said township, on a judgment obtained by Clement against J. D. Galbraith for the rent of certain premises, and the possession of the same.

The petition is in four counts, the first of which prays damages for the failure to serve the first execution issued on said judgment on November 15, 1901, by placing the relator in possession of the premises. The second count pleads certain special damages alleged to have been caused by the constable's default in refusing to serve the said first execution, said damages being entailed by Galbraith allowing horses and stock to destroy vines and fruit trees on the premises after the refusal of the constable to serve said execution; also damages caused by relator having to remove some lumber from said premises and store it elsewhere. The third count asked for damages for the refusal of the constable to serve an alias execution issued on said judgment on November 30, 1901, by putting relator in possession of the premises described in the execution. The fourth count prays special damages similar to those prayed for in the second count as caused by the refusal of Rainey to serve the alias execution.

The answer, after admitting the election of Rainey as constable, and the execution of the bond sued on, and also that Brooksbank was a qualified and acting justice of the peace, states that Rainey, by his deputy, W. W. Dillard, collected and paid over to A. F. Butts, the attorney for relator in the case against Galbraith, the full amount of the debt and costs for which judgment was rendered in said case; further, that Rainey was instructed and directed by said Attorney Butts not to make restitution of the real estate to the relator within five days after the issuance of the execution, but was directed by said attorney to return the execution at the end of five days; that said first execution, as originally issued, commanded the constable to make return thereof within five days after its date; that, after it was returned to the justice, it was altered by said attorney so as to be returnable 90 days after its date, instead of 5; that, by reason of the direction of the relator's attorney to the constable to return said execution and not put relator in possession of the property, the latter was estopped to claim damages on account of the failure of defendant Rainey to serve said execution.

The answer further states that Rainey was instructed and directed by said Attorney Butts to make return of the alias execution issued November 30, 1901, in order that Justice Brooksbank might issue another execution in the case against Galbraith, to be directed to J. D. Stokes, constable of North Campbell township, where the real estate was situate, and in which Galbraith was a resident, said Attorney Butts representing to Rainey that Clement would release him (said Rainey) from all liability in the premises; that by reason thereof relator ought not to be permitted to recover damages for not being placed in possession of said real estate.

At the conclusion of the evidence for the appellant the circuit court gave an instruction to the jury that plaintiff was not entitled to recover, and that they should find the issues for the defendants. That ruling is sought to be sustained on two grounds: First. That the justice had no jurisdiction or authority to render a judgment in the action instituted by Clement against Galbraith for possession of the premises. Second. That Butts, as attorney for Clement, had authority to direct the constable to return the executions without making restitution of the property occupied by Galbraith to Clement; that he gave Rainey that direction, in obedience to which Rainey returned the executions without serving them, so far as putting Clement in possession of the disputed premises is concerned.

In determining the force of the first position, it is necessary to notice the proceedings before the justice of the peace (Brooksbank) in the case of Clement against Galbraith. That case originated with the filing of the following complaint:

"State of Missouri, County of Greene—ss.: Eugene Clement, being duly sworn, on his oath says that A. D. Galbraith now occupies as tenant the following premises, to wit: The east three-fourths of the southeast quarter of northeast quarter and the west 22 acres of the northeast quarter of northeast quarter of section 17, township 29, range 22 west, containing fifty acres, more or less, in the county of Greene, in said county and state—which said above-described real estate was rented to said A. D. Galbraith on the 11th day of February, A. D. 1901, for the term of one year, at the rate of two hundred and 99/100 dollars per year, and that the sum of one hundred and three dollars and 32 cents is now due to Eugene Clement for said rent, and that the same has been demanded of said A. D. Galbraith, and payment has not been made; that notes were given for the same, and they are herewith filed as a part of this petition. Wherefore plaintiff asks for judgment for $103.32 and possession of the premises. Eugene Clement.

"Subscribed and sworn to before me this 29th day of October, 1901. S. Brooksbank, Justice of the Peace.

"Filed the 30th day of Oct., 1901. S. Brooksbank, J. P."

To the complaint were attached four promissory notes, for $8.33 each, all dated February 11, 1901, and falling due on the 11th days of July, August, September, and October of that year, payable to the order of M. R. Hipes, expressed to be for value received, and bearing 8 per cent. interest when due. These notes were each indorsed by Hipes, the payee.

Along with the complaint, Clement filed an attachment affidavit, stating that the rent was due and unpaid, and that Galbraith was disposing of the crop so as to endanger the collection of the rent, and also an attachment bond, with two sureties, in double the amount of the rent sued for, binding him (Clement) and his sureties to indemnify Galbraith if it appeared the attachment had been wrongfully obtained. Rev. St. 1899, § 4123.

Thereupon the justice issued a writ of attachment to Rainey, the constable,...