State ex rel. Johnson v. Dunn

• Decision Date: 31 May 1875
• Citation: 60 Mo. 64
• Parties: THE STATE OF MISSOURI, ex rel. THOMAS W. JOHNSON and HARRIET JOHNSON, Respondent, v. RICE A. DUNN, JOSEPY WILLIAMS and LEMUEL DUNN, Appellants.
• Court: Missouri Supreme Court

60 Mo. 64

THE STATE OF MISSOURI, ex rel. THOMAS W. JOHNSON and HARRIET JOHNSON, Respondent,

v.RICE A. DUNN, JOSEPY WILLIAMS and LEMUEL DUNN, Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Caldwell Circuit Court.

Crosby Johnson, for Appellants.

I. The depositions should have been admitted. (Tindall vs. Johnson, 4 Mo., 113; Cabanne vs. Walker, 31 Mo., 274; Delventhal vs. Jones, 53 Mo., 460; Parsons vs. Parsons, 48 Mo., 405.)

II. The court was bound to enter up the judgment conformably to the verdict. (Bartling vs. Jamison, 44 Mo., 141; 8 Mo., 45; 27 Mo., 396; Emmons vs. Dow, 2 Wis., 322.)

The court could not award the return of the property. (Ford vs. Ford, 3 Wis., 399; Heeron vs. Beckwith, 1 Wis., 17; 22 Wis., 568; 30 Wis., 200; 13 Wis., 17; Tardy vs. Howard, 12 Ind., 404.)

III. One of the sureties being responsible, only nominal damages could be recovered. (Lord vs. Bicknell, 35 Me., 53; Glezen vs. Rood, 2 Metc., 490; Gallarati vs. Orzer, 27 N. Y., 324.)

Hoskinson & McLaughlin, for Respondent.

The bond was insufficient and the sureties thereon are liable. (See State vs. Boisliniere, 40 Mo., 568.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages for the breach of the official bond of a constable.

Rice A. Dunn was elected constable of Kingston township, Caldwell county, Missouri, and entered upon his duties as such, the defendants, Lemuel Dunn and Joseph Williams, becoming sureties on his bond as such constable. The bond is in the usual form. The breaches of the bond averred in the plaintiff's petition are as follows: that the Grover & Baker Sewing Machine Company, on the 18th day of November, 1870, instituted a suit before a justice of the peace, under the statute for the “Claim and Delivery of Personal Property” in justices courts; (2 Wagn. Stat., 817) that the suit was commenced by said company to recover from the relators in this action the possession of a sewing machine, of the Grover & Baker pattern, which, it is charged, belonged to said company, and was detained by relators. An order of delivery was issued by the justice and placed in the hands of the defendant Rice A. Dunn, as constable as aforesaid, to be by him executed as the law directs. It is alleged that said constable did, on or about the 18th day of November, 1870, proceed to execute said order for the delivery of the possession of said sewing machine, and did then and there take the said machine from the possession of the relators, and unlawfully deliver the same to the said Grover & Baker Sewing Machine Company, without first requiring said company to deliver to him, the said constable, a bond for the return of said property upon the conditions required by law; that he failed and refused to take any bond at all in said cause; that the instrument taken by him was not under seal; that the sureties thereon were not at said time, nor have they since become, resident householders or freeholders within said county of Caldwell; that after the delivery of said property to said company such further proceedings were had in said cause, in said justice's court that on the 16th day of January, 1871, the relators recovered in said cause a judgment to the effect that said sewing machine company was required to return to said Thomas and Harriet Johnson said sewing machine, and that said relators at the time elected to take said property in place of the assessed value thereof as assessed in said judgment; that the said sewing machine company failed and refused to deliver said machine to the relators, as required by said judgment, and still refuse so to do; that in consequence of the failure of said constable to take the bond required by law from the said sewing machine company to indemnify relators, they are left wholly without remedy except by this action; that the relators were the owners of said machine at the time of the taking and delivery thereof to said company by said constable as aforesaid; that the same was worth seventy dollars; that by reason of the said taking, etc., relators are damaged in the sum of sixty dollars, etc.

The defendants, in their answer, aver that relator Harriet Johnson is a married woman, the wife of her co-relator; that said defendant, Rice A. Dunn, did in conformity with the statute take a bond in said case, pending before the justice of the peace, for a sufficient amount to indemnify relators, which bond was taken in strict conformity to the law; that the sureties thereon were solvent, and such as are designated by the statute, etc.

The defendants fully denied all other material allegations stated in the petition. The plaintiff replied, denying the affirmative averments in the answer, except that relators were husband and wife.

The case was tried by the court, and judgment rendered for the plaintiff in the sum of forty dollars and costs.

The defendants filed a motion for a new trial, which being overruled by the court, they excepted and have appealed to this court.

During the trial of the case there were a great many objections made and exceptions saved by the respective parties, but it will not be material to a proper disposition of this case that we should notice any but a few of the most prominent ones.

The constable's bond, read in evidence, was in the usual form, and the bond taken by the constable, was in conformity to the sixth section of the act concerning the “Claim and Delivery of Personal Property” in justices' courts, and was not under seal. It was, however, shown that one of the sureties on the bond was not a resident, nor householder or freeholder of the county of Caldwell, as is required by the 8th section of the act before referred to. The evidence tended to prove that the other surety came within the provisions of the law, and was at the time sufficient and solvent.

A transcript of the proceedings before the justice of the peace in the action for the delivery of the sewing machine referred to and described in the plaintiff's petition, was read in evidence. The judgment rendered by said justice in said cause, was as follows: “January 16th, 1871.--The above cause coming on to be heard, both parties being present and ready for trial, a venire being issued and returned with the following names, to-wit: * * * * six good and lawful men, who are duly sworn, and, after hearing the evidence, returned with the following verdict: ‘We, the jury, find for the defendants and assess the damages at twenty-five cents;’ it is therefore considered by the court that plaintiff return the property as taken to defendants, or that he and his sureties, Morton and Johnson, pay the said defendant ____ dollars at the discretion of defendants, and also pay double the damages assessed for the detention of said property, to-wit: the sum of fifty cents, and his costs in this suit, and that they have execution therefor.”

The plaintiff offered evidence tending to prove that the machine in controversy was the property of relator T. W. Johnson, and that it was worth fifty-five dollars.

The defendants on their part introduced evidence which tended to prove that neither of the relators were the owners of the machine, in question before the justice.

It was also shown that, after the rendition of the judgment by the justice, the plaintiff in that case had paid off the judgment rendered for damages and costs, and that the relator T. W. Johnson had demanded of the constable and the agent of the Grover & Baker...