State ex rel. Watkins v. Miserez

• Decision Date: 30 April 1877
• Citation: 64 Mo. 596
• Parties: STATE TO USE OF J. F. WATKINS, et al., Respondents, v. PETER J. MISEREZ, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 596

STATE TO USE OF J. F. WATKINS, et al., Respondents,

v.PETER J. MISEREZ, et al., Appellants.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jackson County Circuit Court.

Wm. E. Sheffield, for Appellants, cited: Local Laws, 1855, p. 60, § 18.

Gage & Ladd, for Respondents, cited: Local Acts 1855, p. 60, §§ 1, 18; Sess. Acts, 1858-9, p. 354, § 8; Id. 1859-60, p. 9, § 1; Peckham vs. Haddock, 36 Ill. 38; Colburn vs. Owens, 10 Mass. 20; Medway Cott. Manuf'g Co. vs. Adams, 10 Mass. 360; Richmond vs. Woodard, 32 Vt. 836; Huff vs. Hutchinson, 14 How. 586; Fosdick vs. Village, etc., 14 Ohio, [St.] 487.

SHERWOOD, C. J., delivered the opinion of the court.

Action on the official bond of defendant Miserez as principal, and the other defendants as sureties. The bond was conditioned for the faithful performance by Miserez of his duties as Marshal of Kaw Township.

The petition in substance alleges the election of Miserez as Marshal of the Kansas City Court of Common Pleas, by the voters of Kaw Township on the 6th of November, 1866, and the execution of the bond in suit, on the 20th of that month; that by an act of the general assembly approved Feb. 20, 1865, (Sess. Acts, 1865, p. 414) it was provided: “That all official papers, acts and duties of, and concerning the Marshal of the Kansas City Court of Common Pleas, which have been, or shall be performed and executed under the name and style of Marshal of Kaw Township, are, and the same shall be, legal and binding as if done and executed under the name of Marshal of the Kansas City Court of Common Pleas;” that the bond in suit was an official paper of and concerning the Marshal of the Kansas City Court of Common Pleas, was executed by Miserez and his sureties as and for his official bond as marshal of that court, was duly approved and filed according to law; that he never executed any other bond as marshal of that court; that on the approval of the bond declared on, he forthwith entered on and proceeded to discharge the duties as marshal of that court, and continued so to do until the expiration of his term of office. The petition then alleges the breach of the conditions of the bond, which breach consisted of the failure of Miserez, as Marshal of the Kansas City Court of Common Pleas, to pay to relators, certain money collected by him under certain attachment proceedings issued and directed to, and executed by him, as marshal of that court. The answer did not deny the execution of the bond, but was in substance a general denial of the allegations of the petition.

On trial of the issues joined, the breach assigned being fully established, judgment went for plaintiffs; and in this we discover no error, nor in the declarations of law which led to that result.

The act (Local Acts, 1855, p. 60, § 1) which established the “Kansas City Court of Common Pleas” limited its jurisdiction to “Kaw Township” and (Id. § 18) constituted the marshal of the city of Kansas, the ministerial officer of that court.

The jurisdiction was always thus limited until the act of December 5th, 1859, (Sess. Acts, 1859-60, p. 9, § 1) which authorized writs of attachment to be served anywhere within the county. Aside from this exception, the jurisdiction of that court was always confined within the territorial limits of “Kaw Township.”

The act of March 2nd, 1859, (Sess. Acts 1858-9, p. 354, § 8) first created the office of “Marshal of the Kansas City Court of Common Pleas” and provided for the election of that officer, on the first Monday in August, 1859, by the qualified voters of that township. This act as well as the act of 1855, of which the former was amendatory, were “ declared public acts. ” Notwithstanding the ministerial officer of that court was designated by the act which created his office as “Marshal of the Kansas City Court of Common Pleas” the legislature, by a subsequent amendatory act, which was also declared a “ public act,” approved December 5th, 1859, and above referred to, speak of that officer as “The Marshal of Kaw Township.” This is done in repeated instances, (§§ 3, 4, 13, 14 and 15) and he is not once mentioned in that act by his true official designation of “Marshal of the Kansas City Court of Common Pleas,” whose duties were declared by the act creating the office (Acts 1858-9, supra, § 14) to “execute all process...