State ex rel. Jean v. Horn

• Decision Date: 20 February 1888
• Citation: 7 S.W. 116,94 Mo. 162
• Parties: The State ex rel. Jean v. Horn et al., Appellants
• Court: Missouri Supreme Court

7 S.W. 116

94 Mo. 162

The State ex rel. Jean v. Horn et al., Appellants

Supreme Court of Missouri

February 20, 1888

Appeal from Nodaway Circuit Court. -- Hon. H. S. Kelley, Judge.

Reversed and remanded.

Thomas J. Johnston and L. M. Lane for appellants.

(1) The court erred in overruling the defendants' objection to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action. Nodaway county was, at the date of the alleged bond, under township organization. This fact is admitted by the pleadings. The constable's bond should have been executed to the town-ship trustee as obligee, and approved by the township board. R. S., sec. 7458. In determining the liability of the constable and his sureties for the official acts of the constable, the bond and the statute, in force at the time, must be regarded as the contract between the defendants and the public. Friedenstein v. McNier, 81 Ill. 208. There is no obligee in the so-called bond. It is assumed to be made to the state of Missouri. This is not authorized by statute. R S., sec. 7458; Roberts v. Parlin, 81 Ill. 230. (2) The judgment is erroneous on the record; not in compliance with the statute; simply a judgment on the verdict, and not for the penalty of the bond. R. S., sec. 570; State v Fitzpatrick, 64 Mo. 185.

Beech & Ellison for respondent.

(1) The court did not err in overruling the demurrer, nor in its construction of the bond in suit. While this county was acting under the township organization law, and the bond should have been executed to the trustee of Monroe township as obligee, instead of the state, yet, said bond filled its mission, was accepted and acted upon by all parties as fully as though made to the trustee, and was a good common-law, if not statutory, bond. Grant v. Brotherton's adm'r, 7 Mo. 458; Gathwright v. Callaway County, 10 Mo. 666; Barnes to use v. Webster, 16 Mo. 258; State ex rel. v. Thomas, 17 Mo. 503; State ex rel. v. Thompson, 49 Mo. 188; Henoch v. Cheney, 61 Mo. 129; Saline County v. Sappington, 64 Mo. 72; State ex rel. v. O'Gorman, 75 Mo. 378, 379. The petition states a cause of action. It sets out the condition of the bond and alleges a breach. State to use v. Moore, 19 Mo. 372; State to use v. Farmer, 21 Mo. 161. There is no defect of parties plaintiff. The state is obligee in the bond, and is trustee of an express trust, and suit is properly brought in the name of the state to use of respondent. Barnes to use v. Webster, 16 Mo. 258; State ex rel. v. Moore, 19 Mo. 369, 371; State ex rel. v. Thomas, 17 Mo. 503; R. S., sec. 577. Appellants waived the action of the court on the demurrer, by proceeding to trial on the merits. (2) Although the trial court rendered judgment upon the verdict, instead of for the penalty of the bond, with special execution for the damages assessed, yet that will not authorize a retrial of the cause, but only result in the remanding of the case, with directions to the circuit court to enter up the proper judgment. State ex rel. v. Fitzpatrick, 64 Mo. 90.

Brace J. Ray, J., absent.

OPINION

Brace, J.

This is an action against a constable and his sureties on his official bond, the breach assigned being the alleged failure of the constable to appraise and set off to the relator certain personal property, claimed by him as exempt from seizure and sale by the constable, under an execution in his hands against the relator, who was the head of a family. The bond sued on was executed in accordance with the provisions of the general law requiring constables to give bonds to the State of Missouri. R. S., 1879, sec. 647.

The answer of the defendants, after denying many allegations of the petition, among others set up the following defence "That the county of Nodaway, in the state of Missouri, was, at the time of the election of the said Horn as constable, and still is, under township organization, having adopted the act of the legislature of this state creating and relating to township organization in this state, and that Monroe township is one of the municipal townships of said county, and that the bond executed by said Horn as constable aforesaid, and the other defendants as sureties, is not a statutory bond, as required in and by said act of the legislature establishing township organization, as aforesaid." This averment was not denied, and stands admitted on the face of the pleading, and defendants contend that this action cannot be maintained against them by reason of the fact that the bond does not conform to the requirements of the township organization act. Section 7458, of that act (R. S., 1879) provides that, every person chosen or appointed to the office of constable, before he enters upon the duties of his office, and within ten days after he shall be notified of his election or appointment, * * * shall execute with two or...