State ex rel. Liechter v. Miller
| Decision Date | 31 July 1871 |
| Citation | 48 Mo. 251 |
| Parties | STATE OF MISSOURI, TO USE OF JACOB LIECHTER et al., Defendant in Error, v. FRED. MILLER et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Cole Circuit Court.
E. L. King & Bro., for plaintiffs in error.
Geo. T. White, for defendants in error.
This is a suit upon a constable's bond to recover damages for an alleged neglect to levy and return a justice's execution according to its command. It is alleged in the petition that the plaintiffs in the execution, on the first day of October, 1868, recovered judgment against the defendants in the execution for $208.15 damages and costs, by the consideration of one Charles L. Wells, a justice of the peace for Jefferson township, in Cole county; that said justice issued an execution thereon, dated January 6, 1869, returnable in ninety days; that said execution was duly placed in the hands of the defendant Miller for levy and collection; that Miller neglected to levy the same and make return thereof according to law, whereby, it is alleged, the plaintiff was damaged in the sum of $208.15, for which he prays judgment, and for interest at the rate of one hundred per cent. per annum according to the provisions of the statute. (Gen. Stat. 1865, ch. 184, § 22.) The defendants answered, putting in issue the fact of the alleged judgment, and denying that Wells was a justice of the peace at the time mentioned, and averring affirmatively that Wells was not in office on the 6th day of January, 1869, the date of the alleged issuance of said execution; and further, that any process issued by him at that time was null and void.
At the trial the plaintiffs gave evidence tending to show that Wells, at the dates mentioned, was acting as a justice of the peace in Cole county, and that his signature to the alleged execution was genuine; that the execution was placed in the hands of the defendant Miller for levy and collection; that the defendant in the execution at that time had property on which it might have been levied; that no levy was made, and that the execution was not returned till after the expiration of the specified ninety days. The execution was read in evidence over the defendant's objections. It recited the rendition of judgment as set out in the petition, but no other evidence of the judgment was offered.
1. While the defendants were not at liberty in this collateral proceeding to question the regularitiy of the supposed...
To continue reading
Request your trial
-
State ex rel. General Motors Acceptance Corp. v. Brown
...Pa. 117. And, of course, there may be de facto justices of the peace, as well as judges. Fleming v. Mulhall, 9 Mo.App. 71; State ex rel. Liechter v. Miller, 48 Mo. 251. The argument thus far has assumed Layton's court was improperly located, but in fact the location was fully authorized und......
-
State ex rel. Athletic Tea Company v. Cameron
...C and D for defendants. (7) Defendants made no proof that the judgment of the justice was valid, as pleaded affirmatively. State ex rel. Lichter v. Miller, 48 Mo. 251. O'Connor and Rendlen & White for respondents. DAUES, P. J. Becker and Nipper, JJ., concur. OPINION DAUES, P. J.-- This is a......
-
Metzner v. Graham
...32 Mo. 225; Bennett v. Vinyard, 34 Mo. 216; Howard v. Clark, 43 Mo. 344; State v. Powell, 44 Mo. 436; Pike v. Megoun, 44 Mo. 498; State v. Miller, 48 Mo. 251; Mayor v. Opel, 49 Mo. 190; Herman on Executions, p. 625, § 408; State v. Langdon, 57 Mo. 350. SHERWOOD, C. J. Plaintiff's petition s......
-
State, ex rel. Naxera v. Armstrong
...JOHN W. MATSON, for the appellants: The judgment of the justice is conclusive, against the constable, in this action. The State to use v. Miller, 48 Mo. 251; Yeoman v. Younger, 83 Mo. 424; Freeman Judgments, sect. 272; Freeman on Executions, sects. 103 and 368. An officer is bound to make s......