State ex rel. Goodwin v. Williamson

• Decision Date: 31 July 1874
• Citation: 57 Mo. 192
• Parties: STATE TO USE OF J. GOODWIN, Appellant, v. WM. WILLIAMSON, et al., Respondents.
• Court: Missouri Supreme Court

57 Mo. 192

STATE TO USE OF J. GOODWIN, Appellant,

v.WM. WILLIAMSON, et al., Respondents.

Supreme Court of Missouri.

July Term, 1874.

Appeal from St. Clair Circuit Court.

Burdett & Smith, for Appellant.

Shields and Johnson, for Respondents.

VORIES, Judge, delivered the opinion of the court.

This action was founded on a bond executed by the defendant, William Williamson, as the sheriff of St. Clair county, and by the other defendants as the sureties of Williamson on said bond.

The petition charged the execution of the bond by said sheriff in the sum of five thousand dollars, in the usual form, payable to the State, and that the other defendants were his sureties. The breach of the bond stated in the petition was substantially as follows: That the relator had, on the 17th day of June, 1870, recovered a judgment in the County Court of Botetourt county, State of Virginia, for the sum of $620.93, with interest and costs, etc., which judgment was recovered against one William P. Bucks; that afterwards, on the 12th day of September, 1870, the said judgment still being unpaid, the relator commenced an action in the St. Clair Circuit Court in the State of Missouri; that said action was founded on, and to recover the amount of said judgment so recovered in Botetourt county, in the State of Virginia, and was commenced against said Bucks by way of attachment, which was duly issued against the property of said Bucks; that said writ of attachment so issued in said cause, was on the day of the issue thereof, placed in the hands of defendant Williamson, as such sheriff of St. Clair county, to be by him served and executed according to law; that at the time said writ was so delivered to said Williamson, and for a long time thereafter the said Bucks was the owner of a large tract of land in St. Clair county, Missouri, subject to be levied on by said writ; that at the time said writ of attachment was so delivered to said sheriff, relator caused a written description of said lands to be delivered to said sheriff, with directions to said sheriff to seize and levy on said lands by virtue of said writ; that said sheriff had wholly failed and neglected to levy upon or seize said lands by virtue of said writ, but had retained said writ in his hands until long after the term of his office had expired, failing either to levy the same or deliver it to his successor in office, or to proceed under the same in any manner whatever, until after the said Bucks had sold the land so owned by him in said county to an innocent purchaser, after which said writ was returned unexecuted; and the said Bucks having no other property out of which the debt could be made, the same became wholly lost to relator, etc.

The defendants by their answer admit that the relator commenced an action in the St. Clair Circuit Court, as charged, and that the attachment was issued therein against the said Bucks and his property, which was placed in the hands of defendant Williamson, as sheriff, with a memorandum of the lands upon which it was to be levied as charged in the petition.

The answer then alleges that immediately after the attachment was received by Williamson, he made a memorandum of a levy to be made on the lands of Bucks in his county, as described in the paper handed him with the writ, but that before said levy was indorsed on the writ of attachment, and on the same day that the writ was received by said sheriff, he was directed by one E. J. Smith, who was one of the attorneys of record for the said relator in that suit, to hold the attachment and do no more in regard to the same until further ordered so to do; that no further orders were given him in reference to said writ, by the relator or his attorneys, during the remainder of the official term of said sheriff; that on or about the 23rd day of February, 1871, after the said Williamson had ceased to be sheriff of St. Clair County, said E. J. Smith, the attorney of the relator, requested said Williamson to enter said levy--a memorandum of which had been made as aforesaid--upon said writ as of the date on which said writ had come to his hands, to-wit: September 12th, 1870, and a memorandum of the levy made, and that an abstract of the same be returned to the recorder of said county; that on the same day, before the said Williamson was able to have the same indorsed on said writ or said abstract filed, the said attorney Smith requested Williamson to deliver said writ and the petition therewith to him--which was accordingly done. The answer then denies that Williamson ever refused or neglected to levy the writ or make and file the abstract thereof as charged, but he states that the same would have been done but for the orders of said Smith. The other material allegations of the petition were denied by the answer. A replication was filed by the plaintiff, putting in issue the new matter set up in the answer.

A trial of the cause was commenced before a jury, and the plaintiff on his part offered to read in evidence a transcript of a judgment and proceedings had in the County Court of Botetourt County, Virginia, in the case of John Goodwin against William P. Bucks, and in connection with said transcript and in support thereof, the plaintiff also offered in evidence certain certified transcripts or copies of certain acts of the General Assembly of the State of Virginia, certified by the Secretary of the State of Missouri; to the reading of all which in evidence, the defendants objected for the following reasons:

1st. Because there is no seal to the writ.

2nd. Because it does not show when or where it was served, and does not show that the wife of Bucks is a free white person, nor that it was served at his usual place of abode, nor that it was in the officer's bailiwick.

3rd. Because the record does not show that there was any court held at the time judgment was rendered, to-wit: the 7th of June, 1870, and there is no consideratum est therefor at the time judgment purports to have been rendered, and no definite or fixed amount rendered in the pretended judgment.

4th. Because there was no service on W. P. Bucks by the sheriff or sergeant of Botetourt Co., Virginia.

The objection made to the introduction of the certified copies of the law, is: because there was nothing to show that they were printed by the authority of the State of Virginia. The court overruled the objection of the defendants to copies of the law of Virginia and they were...