State ex rel. Moutrey's Adm'rs v. Muir

• Citation: 20 Mo. 303
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 January 1855
• Parties: THE STATE, TO USE OF MOUTREY'S Adm'rs, Plaintiff in Error, v. MUIR & RITTER, Defendants in Error.

20 Mo. 303

THE STATE, TO USE OF MOUTREY'S Adm'rs, Plaintiff in Error,

v.MUIR & RITTER, Defendants in Error.

Supreme Court of Missouri.

January Term, 1855.

1. In an action against the securities in a constable's bond, for the failure of an acting deputy to pay over money collected under execution during the constable's term of office, it is no defense that the principal had forfeited his office by removal from the state.

2. The securities in a constable's bond are liable for the delinquencies of a deputy acting with the consent of their principal, although the deputy's appointment is not filed as required by law.

Error to Jackson Circuil Court.

This was an action against the securities on a constable's bond, for failure to return an execution and pay over money collected under it. The bond was conditioned that Presley Muir should “serve all process to him directed and delivered, pay over all monies by him collected, and in all other respects well and truly do and perform, all and singular, the duties that now are or may be enjoined upon him by law to do and perform as constable of Kaw township.”

The cause was tried by the court without a jury, and the following facts found:

Muir was in August, 1850, elected constable of Kaw township for the term of two years, and entered into bond, with the defendants as sureties. During a portion of the year 1851, and up to August, 1852, Ross acted as the deputy of Muir, and was by Muir recognized as such, but no written appointment was filed in the office of the clerk of the county court, as required by law, nor did it appear that there was any written appointment. In April, 1852, the beneficiary plaintiffs recovered a judgment before a justice of the peace in Kaw township. On the 20th of April, 1852, execution upon said judgment directed to the constable of Kaw township, returnable in sixty days, was issued and placed in the hands of Ross, the deputy. Ross collected the money under the execution, but failed to pay it over, or to return the execution. In July, 1851, Presley Muir removed with his family to Wyandotte, in Nebraska territory, and has since continued to reside out of the state of Missouri.

Upon these facts, the Circuit Court declared that the defendants were not liable. The plaintiffs moved for a review of the law and facts, but their motion was overruled, and they appealed to this court.

Smart & Sheley, for plaintiff in error.

I. It is sufficient to prove that sheriffs, constables and other peace officers acted as such to render them liable. (People v. Collins, 7 Johns. 549; Potter v. Luther, 3 Johns. 431; Hart v. Robinett, 5 Mo. 11; 9 Wend. 17; 3 Scammon, 483; 4 T. R. 366; 1 Pick. 273.)

J. B. Hovey, for defendant in error.

I. By the removal of Muir from the state, his office as constable became vacant, and the defendants were not liable for any subsequent acts of his deputy. (R. C. 1845, tit. Constables, secs. 1 and 10.)

II. Muir never had a deputy within the meaning of the law. (Same act, sec 7.)

SCOTT, Judge, delivered the opinion of the court.

1. The plaintiff moved for a review of the finding of the court below, but we do not deem it necessary to revise the action of the court in that matter; for taking the facts as found, the judgment for the defendants was not warranted by law.

If the principal in the bond would be liable for the act of the deputy, the rule is not perceived on which the sureties would be discharged. The surety in an obligation is bound to the same extent thereby as the principal. If this was a proceeding against the constable for unlawfully exercising his office,...