State, ex rel. Mcpherson v. Beckner
| Decision Date | 07 October 1892 |
| Docket Number | 14,674 |
| Citation | 31 N.E. 950,132 Ind. 371 |
| Parties | The State, ex rel. McPherson, v. Beckner et al |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Judgment reversed, with instructions to grant a new trial.
T. F Gaylord, for appellant.
J. M Dresser, for appellees.
This was an action brought by the relator against a constable and his surety on his official bond. The cause was tried by a jury and a special verdict returned. Each party made a motion for a judgment upon the verdict. The motion of the appellant was overruled, and that of the appellees was sustained.
The only questions involved in this appeal relate to the ruling upon these motions. The questions presented are:
First. Had the officer authority to enter the residence of the relatrix to serve the civil process in his hands under the circumstances disclosed in the verdict of the jury?
Second. If no such authority existed, do the wrongs and injuries complained of afford a right of action on the bond?
The facts stated in the verdict, so far as we need call attention thereto, are substantially as follows:
The relatrix and her two daughters composed a family of which she was the head, and occupied as a residence a certain dwelling house in the city of Lafayette. Mrs. Mattie C. Smith, one of the daughters, had in her possession in said dwelling a sewing machine. On the 8th day of February, 1883, the Howe Sewing Machine Company brought an action of replevin before a justice of the peace against Mrs. Smith for the possession of said sewing machine, and in the forenoon of that day said justice issued and delivered to the appellee Beckner, as constable, a writ of replevin commanding him to take said sewing machine and to deliver the same to said Howe Sewing Machine Company. Immediately upon receiving said writ said constable called at the residence of the relatrix and was by her admitted into the same. After having been admitted into said dwelling house he stated to the relatrix that he had a writ of replevin for the sewing machine of said Mattie C. Smith, who, although a resident of said dwelling-house, was temporarily absent on said day; that at said time said sewing machine was, without fraud, in said dwelling-house; that the relatrix pointed out to him the sewing machine which was then and there in the northeast corner of the sitting room; that said Beckner did not take possession of said sewing machine, but went away without having done so; that after said Beckner went away from the dwelling-house the relatrix took said sewing machine and put the same in a bed-room adjoining the sitting-room on the west, locked the door of the bed-room, and took and placed a sewing machine belonging to her daughter Anna in the place where the sewing machine of said Mattie C. Smith had been when it was pointed out to said Beckner in the morning.
On the afternoon of the same day Beckner, in company with two other persons whom he had engaged to assist him to execute his writ, went to said dwelling-house for the purpose of executing said writ by taking possession of said sewing machine, and with the intention of taking possession of the same, and if necessary carrying it away by force; that said Beckner, upon arriving at said dwelling-house, rang the door bell attached to the front and outer door; the relatrix, upon going to said door, opened it a few inches, when said Beckner, upon said door being so opened, slipped his cane in, and the relatrix thereupon said, "Oh, it is you, is it?" and immediately, and before the said Beckner had entered or partly entered said dwelling-house, attempted, by leaning and pushing against the said door, to close the same, and to keep said Beckner from entering said dwelling; that said Beckner called to his associates to come, and then and there, with the purpose and object of executing his said writ as constable as aforesaid, by obtaining possession of the sewing machine therein called for, and claiming to act under the power and direction of said writ, pushed with great force on said outer door of said dwelling-house, and forced the same open against the will and power of said relatrix, who was thereby thrown back on a bannister near said door and injured. After the officer had gained an entrance into the dwelling, he proceeded to execute the command of his writ, the relatrix resisting him at every step. During the struggle the relatrix received further injuries. This action was brought to recover damages because of such injuries.
It is contended by counsel for the appellant that in view of the facts disclosed by the verdict the constable was acting virtute officii, not merely colore officii. With this contention we are in accord. The constable had a legal process, and his sole purpose seems to have been the execution of the command which it carried to him. There is some conflict of authority as to whether or not there is a right of action on the bond of a ministerial officer for an unlawful act done colore officii. Brandt Sure., section 566; Commonwealth v. Cole, 46 Am. Dec. 506, and notes. But when the officer is acting virtute officii, the authorities all agree that a suit will lie upon his bond. In Clancy v. Kenworthy, 74 Iowa 740, 35 N.W. 427, the sureties on the bond of a constable were held liable in an action for a breach of an official bond caused by an unlawful arrest made by the officer. In Cash v. People, etc., 32 Ill.App. 250, the sureties were held liable for an unlawful assault made by a constable in making an arrest.
It necessarily follows that if the constable in the case under consideration was guilty of unlawful conduct in the discharge of his official duties, to the injury of the relatrix, he and his surety must respond in damages, and the trial court was in error in rendering judgment for the appellee. Upon the other hand, if what the constable did was under the circumstances justifiable, then the court did not err.
The writ under which the officer was acting was but a civil process, and did not authorize him to force the outer door of a dwelling. 2 Freeman Ex., section 236; Snydacker v. Brosse, 51 Ill. 357; note to M'Gee v. Given, 4 Blackf. 16; Curtis v. Hubbard, 1 Hill 336; Curtis v. Hubbard, 4 Hill, 437.
In actions of replevin a sheriff may, under our statute, section 1271, R. S. 1881, in some cases cause a building or enclosure to be broken open, but no similar statute gives such right to a constable. Except as modified by statute, the common law principle that every man's house is to be treated as his castle and kept sacred from forcible intrusion, prevails in this State.
The verdict informs us that when the constable went to the...
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