State v. King

• Decision Date: 21 June 1934
• Docket Number: No. 5324.,5324.
• Parties: STATE ex rel. WEBB v. KING et al.
• Court: Missouri Court of Appeals

73 S.W.2d 460

STATE ex rel. WEBB v. KING et al.

No. 5324.

Springfield Court of Appeals. Missouri.

June 21, 1934.

Rehearing Denied July 30, 1934.

Appeal from Circuit Court, Dunklin County.

Action by the State, on the relation of Fannie Pollock Webb, against Jack King and others. From an adverse judgment, defendants appeal.

Affirmed.

Sharon J. Pate and Sam J. Corbett, both of Caruthersville, for appellants.

Haw & Haw, of Charleston, for respondent.

ALLEN, Presiding Judge.

This is an action on constable's bond, and was begun in Pemiscot county, Mo., on the 16th day of June, 1930.

Relator alleges that she was the owner of certain personal property, described in her amended petition; that appellant, Jack King, a constable, on April 11, 1929, levied upon the same, as property of E. A. M. Webb, under a writ of attachment, issued by Tom Smith, a justice of the peace for Little Prairie township, in said county, in a case wherein Lee Cunningham was plaintiff and E. A. M. Webb was defendant. The relator in this case and the defendant in the court of the said justice were husband and wife. The property so levied upon by King, the constable, who is appellant herein, is claimed by relator in this case as her separate property, for the value of which this suit is brought. She claimed to have long been the owner thereof at the time of the levy and sale complained of in her petition. The evidence showed prior to and at the time of the levy and sale mentioned relator was the wife of said E. A. M. Webb; that after her marriage with Webb she caused her property to be moved to a farm near Caruthersville, Mo., owned by her husband's children by a former marriage; when she left the farm she caused her furniture to be stored in the dwelling on said farm, where she and her husband had theretofore resided for about two years; that both relator and her husband, E. A. M. Webb, about March 10, 1929, left the farm; later Webb returned to the farm, but had not been seen there for a month or more preceding the filing of the attachment suit in the justice court, at which time neither relator nor her husband was at the farm. The proceedings in the justice court were regular on their face. Relator did not have any knowledge of the suit when it was brought or of the levy upon and sale of her property as aforesaid, until some time in August thereafter. The constable claimed to have had no knowledge or notice of her claim to said property until after the sale thereof under the special execution heretofore mentioned. Upon a trial of this cause, a jury returned a verdict in favor of relator in the sum of $1,500, the penalty of the bond, and assessed the damages of relator at the sum of $200.

Mrs. Webb, the relator, testified that certain of the personal property sold under the execution heretofore mentioned belonged to her before her marriage with her husband, E. A. M. Webb, and was her separate property at the time of the sale under the execution; that when she left the farm she stored her property in the house, where it was afterward levied upon; that she never learned of the fact that it was levied upon until two or three months after it had been sold by the constable.

Mrs. Elizabeth Johnson, sister of relator's husband, testified that she knew her brother had no household goods at the time of his marriage with relator, except a range and a heating stove, which he had bought after his marriage, but knew of no other household goods of his.

Mrs. Zillafro, daughter of relator, identified the property described in the lists in evidence, marked "Exhibit C-1 and C-2" and a slip "marked Exhibit (E)." The estimated value of the goods named in Exhibits C-1 and C-2 was $1,476.50.

There was no testimony offered at the trial disputing the claim of relator that she was the owner of the property described in her petition; that the exhibits from which she refreshed her memory were prepared by relator for convenience, but concerning the items therein mentioned she testified of her own knowledge. The admission of the exhibits purporting to be a list of the property claimed by her was, if erroneous, at most but a harmless one, and the admission thereof, for the purpose of convenience in identifying the property claimed by the relator, was not, in our opinion, reversible error.

There can be no question that a constable and his sureties are liable for the seizure of property belonging to one person under a writ against another. A wrongful sale is made under an execution when the original levy was wrongful. 23 C. J. p. 971, § 1223, p. 972, § 1224.

It is ordinarily held that the seizure by a sheriff or constable of property of one person under process against another is breach of his official bond, for...