State ex rel. Squire & Reed v. Bird

• Decision Date: 31 January 1856
• Citation: 22 Mo. 470
• Parties: THE STATE, TO USE OF SQUIRE & REED, Respondent, v. BIRD & GILBERT, Appellants.
• Court: Missouri Supreme Court

22 Mo. 470

THE STATE, TO USE OF SQUIRE & REED, Respondent,

v.BIRD & GILBERT, Appellants.

Supreme Court of Missouri.

January Term, 1856.

1. In an action against the sureties in a constable's bond, the judgment was, under the circumstances, reversed for the refusal of the court below, in the exercise of its discretion, to permit the defendants, after a motion to dismiss overruled and before judgment by default, to file their answer setting up lapse of time as a bar.

2. Where a statute creates an absolute bar by the mere lapse of time, without any exception, the defence may be made by demurrer, if the necessary facts appear in the petition.

3. The admissions of a constable, forming no part of the res gestæ, are not evidence against his securities.

Appeal from Weston Court of Common Pleas.

This was an action begun September 15, 1854, against Stevens and his securities, upon his official bond as constable. It appeared from the petition that the bond was dated August 7, 1851; that it recited the appointment of Stevens as constable in the place of one Patton, removed, and was conditioned the usual form of a constable's bond. There was no allegation as to the time when Stevens' term of office expired. The breach assigned was, that the constable had received from the beneficial plaintiffs a note against one Davis for collection, had collected the money, and failed to pay the same over on demand.

The history of the proceedings up to the time of judgment against Bird & Gilbert, the securities, for want of an answer, is sufficiently stated in the opinion of the court. Upon the assessment of damages, the plaintiffs were allowed to prove an admission by Stevens to Doniphan, made during the pendency of a suit on the note against Davis, which Stevens had employed Doniphan to conduct, that he had collected the money; and to the admission of this evidence, the defendants, Bird & Gilbert, excepted. After final judgment against them, they appealed to this court.

H. M. Vories, for appellant.

1. The petition was insufficient. The law positively declares that no suit shall be brought against the securities of a constable on his official bond, unless the same is brought within two years after the expiration of his term of office. (R. C. 1845.) In this case, it appeared on the face of the petition that more than two years had elapsed after the expiration of the term for which Stevens was appointed constable, as the court is bound to know the law which fixes the term for which constables are elected. 2. The defendants should have been permitted to file their answer after the motion to dismiss was overruled. The plaintiff had waived his right to object to the time within which the motion was filed, by consenting to a continuance. 3. The admissions of Stevens to Doniphan were not admissible evidence against the defendants, Bird & Gilbert. (2 Phil. on Ev. 669, 671, 673; Hotchkiss v. Lyon, 2 Blackf. Rep.; 3 Har. & McH. 242; 5 Esp. 26; 3 Bouvier's Inst. 364; Starkie's Ev. tit. Admissions; 1 Greenl. Ev. § 187, 188.)

Abell & Stringfellow, for respondent.

1. The motion to dismiss was properly overruled, both because it was filed too late, and because the statute of limitations can only be taken advantage of by answer. 2. The court will not interfere with the discretion exercised by the court below in refusing to permit the answer to be filed, as it can not see the reasons which operated on the mind of the court. The statute of limitations is an iniquitous defence, and is not favored. 3. The admissions made by Stevens, while he had the management of the suit for the collection of the money, were a part of the res gestæ, and were admissible.

LEONARD, Judge, delivered the opinion of the court.

At the return term no proceedings were had, except a single entry, postponing the case to another day. At the next term, the defendants filed a motion to dismiss, because it appeared upon the petition that the suit was commenced more than two years after the expiration of the constable's term of service, and the motion and suit were, by agreement of the parties, both postponed until the next term--the plaintiff, at the same time, taking an order for an alias writ against the constable, who had not yet been served. At the succeeding term, the motion to dismiss was overruled, and the sureties, no default having been taken against them, immediately presented an answer setting up the same defence, and asked leave to file it,...