State ex rel. Colvin v. Six

• Decision Date: 31 October 1883
• Citation: 80 Mo. 61
• Parties: THE STATE ex rel. COLVIN v. SIX et al., Appellants.
• Court: Missouri Supreme Court

80 Mo. 61

THE STATE ex rel. COLVIN

v.SIX et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

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

AFFIRMED.

S. P. Sparks for appellants.

J. P. Orr and O. L. Houts for respondent.

NORTON, J.

This is a suit at the relation of Andrew Colvin against defendant Six and his sureties on a constable's bond. On the trial plaintiff had judgment, from which the defendants have appealed.

The breach of the bond assigned in the petition is in substance that on the 18th day of January, 1879, an alias execution was issued on a judgment rendered against plaintiff by W. C. Smith, a justice of the peace, which was delivered to defendant Six, who was the constable of the township, and who levied the same on eight head of hogs belonging to plaintiff and sold the same; that said alias execution was void; that it was issued on a judgment rendered by said justice that was void because he had no jurisdiction either of the person of plaintiff or the subject matter of the suit; all of which was well known to said Six at the time he received the execution; that prior to the issuance of the alias execution an execution on the same judgment had been issued against plaintiff which had been levied on sufficient personal property of plaintiff's to satisfy said execution.

The defendant in his answer admits that he received the alias execution, levied it upon the hogs and sold them by virtue of the power it gave him, plaintiff being present at the sale, ordering and directing the manner of the sale; that the proceeds thereof were applied to the satisfaction of the execution, except $4, which he tendered and offered to pay over to plaintiff.

1. JUSTICES COURTS change of venue judgment

On the trial it appeared in evidence that plaintiff in this suit, and who was defendant in the suit before the justice who rendered the judgment upon which the execution issued, previous to the trial appeared before the justice and applied for a change of venue, which the justice overruled, whereupon plaintiff abandoned the case, and the justice proceeded to try it and rendered judgment. It is contended by plaintiff's counsel that after he made his application for a change of venue complying with the statutory requirements in making it, the justice had no other jurisdiction of the same than to order the change and to send the case to another justice, and that the judgment rendered by him was a nullity. This precise point was raised at the present term in the case of Colvin v. Six, 79 Mo. 198, where the identical judgment here drawn in question was held not to be a nullity, and that an execution upon it gave full authority and protection to Six, the constable, in executing it. The circuit court evidently tried that case, as well as the one now under consideration, on the theory that the judgment of the justice was a nullity, and the instructions asked by defendant bearing upon that point, and refused by the court, ought to have been given.

2. EXECUTION: replevin of property levied on: second execution.

It is also claimed by counsel for plaintiff that the first execution which issued on the judgment was levied upon two horses, the property of A. Colvin, of the value of $100, and more than sufficient to pay the execution; that this levy operated as a satisfaction of the judgment, and that the second execution was, therefore, issued without warrant of law and was void. The defendants' counsel on the other hand insists that inasmuch as the return of the constable on the first execution showed that the horses levied upon had been taken out of his possession by a writ of replevin which was issued in a suit begun by B. F. Colvin for the recovery of the possession of the said horses, the justice of the peace was warranted in issuing a second execution, and this execution warranted the defendant...