State ex rel. Polster v. Miles
| Citation | 129 S.W. 731,149 Mo.App. 638 |
| Parties | STATE OF MISSOURI at the Relation of TOBIAS POLSTER, Respondent, v. JAMES P. MILES et al., Appellants |
| Decision Date | 14 June 1910 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wm. M. Kinsey Judge.
Judgment reversed and cause remanded.
Frank A. C. MacManus for appellants.
(1) The cause of action in cases of this kind, is not the amount of money paid to satisfy a "judgment," but the actual loss sustained by plaintiff. Neither the petition nor the proof of plaintiff make any such case, the conduct and condition of the person complaining must be alleged. The petition must truthfully show the loss which flowed as a natural and direct consequence from the acts of the parties or the wrongful act. The intervening act of "appearance" at the trial was recited in the "record judgment" when voluntarily paid, said judgment is not attacked in the petition, nor any question raised by plaintiff. Griggs v. Flickstein, 14 Minn 81; Pastene v. Adams, 49 Cal. 87; Harrison v Collins, 86 Pa. 153; Powell v. Devaney, 3 Cush. 300; Lane v. Atlantic Works, 107 Mass. 104. (2) The demurrer to the evidence as offered by defendant at termination of relator's case should have been sustained. Last paragraph in Morrison v. Yancey, 23 Mo.App. 675. After the transcript of the judgment was offered by plaintiff, the case of relator was at an end, and it was error to refuse instruction at the end of plaintiff's evidence, and at the close of the cause to refuse instructions Nos. 6 and 7, when offered at the termination of the cause instead of the termination of plaintiff's case, at the trial judge's directions. Strobel v. Clark, 128 Mo.App. 49; Weber v. Schmeiser, 7 Mo. 600; Latrielle v. Derleque, 35 Mo. 233; Johnson v. Kerkhoff, 35 Mo. 291; Brawley v. Raney, 67 Mo. 283; Rumfeldt v. O'Brien, 57 Mo. 569; Bernecker v. Miller, 44 Mo. 102; State v. Stinebaker, 90 Mo.App. 285; State v. Orahood, 27 Mo.App. 496.
Geo. W. Lubke and Geo. W. Lubke, Jr., for respondent.
(1) The motion in arrest of judgment was properly overruled. The petition states all the facts essential to constitute a good cause of action on the bond sued on. It recites the judgment obtained against the relator by reason of the false return on the summons made by the defendant Miles; that the judgment became a lien on the real estate of relator; that in order to clear said real estate from such lien relator was obliged to pay the judgment, and that thereby he was damaged in the amount so paid, and prays judgment for the penalty in the bond to be satisfied in the payment of the amount paid by relator to clear his real estate from the lien with interest and costs. State ex rel. v. Finn, 87 Mo. 310, s. c. 24 Mo.App. 344. A general allegation of damage sustained as the result of wrongful acts of the defendant is sufficient. Evidence need not be pleaded. Funkhouser v. Inglis, 17 Mo.App. 232; Lesser v. Railroad, 85 Mo.App. 326. (2) The defendants' peremptory instruction that the relator was not entitled to recover was properly refused by the court. This instruction was asked on the theory that the recital in the justice's docket that the relator in this case and defendant in the one before him appeared before the justice on the return day of the summons is conclusive on the relator that he appeared there and cannot be contradicted. This is not the law. A justice's docket is evidence only of such facts as the justice is by law required to place therein. Fabien v. Grabow, 134 Mo.App. 193; Heman v. Larkin, 99 Mo.App. 294. A fact not entered in the docket may be shown by the testimony of the justice. Rowe v. Schertz, 74 Mo.App. 602. A judgment entry on a justice's docket may be either aided or impeached by the return on a summons or other writ. Henman v. Westheimer, 110 Mo.App. 191; Cloud v. Pierce City, 86 Mo. 37; Blodgett v. Schaffer, 94 Mo. 652; Sappington v. Lenz, 57 Mo.App. 44; Jester v. Spurgeon, 27 Mo.App. 477; Raum v. Eyerman, 2 Mo.App. 476. Besides, even though relator may not have been entitled to recover substantial damages he was certainly entitled to recover nominal damages. State ex rel. v. Harrington, 28 Mo.App. 287.
This is a suit on a constable's bond for damages alleged to have accrued on account of a false return on a writ of summons. Relator recovered and defendant prosecutes the appeal.
It appears that Daniel and Michael P. Larkin, doing business as Larkin Brothers, instituted their suit on an account of about one hundred and fifty dollars against the relator, Polster, before a justice of the peace and a writ of summons was duly issued thereon. Defendant constable, through his deputy, made a return on the summons to the effect he had served the same in accordance with the statutes upon relator, Polster, by delivering a true copy thereof to a member of his family, over fifteen years of age, at his usual place of abode in the city of St. Louis. It is said that there was a mistake by the defendant's deputy as to the fact in serving the process; that instead of delivering the writ to a member of Polster's family at his usual place of abode he delivered the same to a gentleman residing at Polster's former place of abode. The evidence for plaintiff tends to prove the constable's return was false and that as a result thereof judgment was rendered against relator by the justice of the peace for the amount of one hundred and fifty dollars, together with accrued interests and costs.
It is conceded relator learned of the suit against him before the justice some four or five days before the day appointed for trial through the courtesy of the gentleman to whom the copy of the summons was delivered in mailing it to him. Relator says that, although he thus had indirect notice of the suit, he did not appear before the justice of the peace for the reason, first, that no writ of summons had been served upon him, and, second, that he did not owe the account sued upon. It is in evidence that relator was an officer of a corporation which had contracted the indebtedness for which suit was filed against him and that the debt for which the judgment was given against relator on the false return was the debt of such corporation and not his. After judgment was given by the justice against relator in that suit and the time for an appeal had elapsed, a certified transcript of the proceedings had before the justice was obtained by plaintiffs Larkin Brothers in that case and filed in the office of the clerk of the circuit court of the city of St. Louis, to the end of affixing the lien of such judgment on relator's real estate. Upon relator Polster's learning the fact that a transcript judgment of the justice of the peace had been filed in the office of the circuit court and that a judgment lien to that extent had thus been established against his property, he discharged the same and instituted this suit on the constable's bond as for a false return of the summons, seeking to recover the amount he was thus compelled to pay out in order to discharge his property of the judgment lien. On the trial there was an abundance of evidence given to establish the fact that the defendant constable, through his deputy, made a false return on the summons to the effect the same had been served on Polster by delivering a copy thereof to a member of his family over fifteen years of age at his usual place of abode in the city of St. Louis.
For the purpose of showing a judgment was actually obtained on such false return and that relator was required to pay the same in order to relieve his real estate from its lien, relator introduced in evidence the judgment given against him by the justice and showed the fact of its filing in the office of the clerk of the circuit court. The judgment of the justice of the peace given in evidence recited the fact that relator Polster, who was the defendant in the summons and in that judgment, actually appeared before the justice and contested the cause of action therein sued upon. At the conclusion of the evidence for relator defendant requested the court to instruct a finding for him on the theory that, although the evidence showed a false return had been made on the summons, the judgment of the justice rendered thereon and introduced by plaintiff recited the fact that relator Polster, defendant in the justice's judgment, had actually appeared before the justice and therefore waived his right to complain of the false return. The court denied the request and proceeded with the case.
It is argued here for defendant the court should have instructed a finding for him for the reason that though it appeared a false return was made, relator Polster, defendant before the justice, actually received notice of the pending suit and appeared and contested the same. It is said that relator having introduced the judgment of the justice of the peace which disclosed that he appeared before the justice by his attorney in the suit of Larkin Brothers against him, is...
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