State v. Horn

• Decision Date: 20 February 1888
• Citation: 94 Mo. 162,7 S.W. 116
• Parties: STATE ex rel. JEAN v. HORN et al.
• Court: Missouri Supreme Court

7 S.W. 116

94 Mo. 162

STATE ex rel. JEAN v. HORN et al.

Supreme Court of Missouri.

February 20, 1888.

1. CONSTABLES — BOND — FORM OF.

A constable of a township executed his official bond to the state as obligee, under the general law concerning the qualification of constables, (Rev. St. Mo. § 647,) instead of to the "township trustee," as required by the township organization act, (Rev. St. Mo. § 7458.) Held, the bond is good as a common law bond.

2. SAME — BOND — AMOUNT OF RECOVERY.

In an action on the official bond of a constable, the trial court should render judgment for the penalty of the bond, and not for the amount of the damages assessed by the jury.

Appeal from circuit court, Nodaway county; H. S. KELLY, Judge.

Action in the name of the state, at the relation of Thomas J. Jean, as plaintiff, against M. P. Horn and others, his sureties, upon his official bond as constable. From a verdict and judgment in favor of plaintiff, defendants appeal.

Thomas J. Johnston and L. M. Layne, for appellants. Beach & Ellison, for respondent.

BRACE, J.

This is an action against a constable and his sureties on his official bond, the breach assigned being the alleged failure of the constable to appraise and set off to the relator certain personal property claimed by him as exempt from seizure and sale by the constable, under an execution in his hands against the relator, who was the head of a family. The bond sued on was executed in accordance with the provisions of the general law requiring constables to give bonds to the state of Missouri. Rev. St. 1879, § 647. The answer of the defendants, after denying many allegations of the petition, among others set up the following defense: "That the county of Nodaway, in the state of Missouri, was at the time of the election of said Horn as constable, and still is, under township organization, having adopted the act of the legislature of this state creating and relating to township organization in this state, and that Monroe township is one of the municipal townships of said county, and that the bond executed by said Horn as constable aforesaid, and the other defendants as sureties, is not a statutory bond, as required in and by said act of the legislature establishing township organization as aforesaid." This averment was not denied, and stands admitted on the face of the pleadings, and defendants contend that this action cannot be maintained against them by reason of the fact that the bond does not conform to the requirements of the township organization act. Section 7458 of that act provides that "every person chosen or appointed to the...