State v. Miller
| Decision Date | 27 September 1927 |
| Docket Number | 5657,5658. |
| Citation | 139 S.E. 711,104 W.Va. 226 |
| Parties | STATE ex rel. PARRAZACK et ux. v. MILLER et al. (two cases). |
| Court | West Virginia Supreme Court |
Submitted September 20, 1927.
Syllabus by the Court.
In an action by tenants against a constable and the surety, on his official bond, for personal injuries alleged to have been inflicted upon them by such officers, while executing a distress warrant, the further charge that the acts complained of were inflicted on a day subsequent to that on which it is averred the writ was executed, is not repugnant to nor inconsistent with the former charge, the return, as alleged, further showing that the writ was executed only partly, by the levy on and the leaving of the goods in the possession of the tenants, and not by a sale of the property also, and an accounting for the proceeds, as the law requires.
The writ in such case, partially executed, is not dead, nor the officer functus officio with respect thereto and his acts done in connection with and in the further execution thereof are properly charged as done while executing such writ.
To execute a writ is to perform fully its mandate, to do all that the writ commands, and until this is done, the writ is for all purposes still alive in the hands of the officer, and what he does under it and in connection therewith must be regarded as having been done in the execution thereof (citing Words and Phrases, "Execute").
Error to Circuit Court, Monongalia County.
Suits by the State, on the relation of J. F. Parrazack and wife against William E. Miller and another. Judgment of dismissal and relators bring error. Cases considered together on appeal. Reversed and remanded.
C. William Cramer and S. A. Barker, both of Morgantown, and F. E. Parrack, of Kingwood, for plaintiffs in error.
Donley & Hatfield and Robert T. Donley, all of Morgantown, for defendants in error.
These suits were brought by the respective relators, husband and wife, against the defendant Miller, as principal, and his codefendant Helmick, as surety, on his official bond as constable of Monongalia County, for damages sustained by plaintiffs in the execution of a distress warrant sued out of the office of a justice of the peace of said county by one George S. Davidson for $300.00 for rent, commanding the said Miller as such constable that he seize and take into his possession the personal property of said Parrazack situated in the dwelling house at No. 430 Spruce Street, in the City of Morgantown, Monongalia County, West Virginia, or so much thereof as might be necessary to satisfy said claim and costs of said distress warrant.
The declarations, original and amended, are substantially the same, in each case. Defendants' demurrers to the original declarations were sustained. Plaintiffs were given leave to amend and did amend both counts thereof, and the court sustained defendants' demurrers thereto, and the plaintiffs declining to further amend, the court pronounced the judgments of nil capiat thereon, to which the present writs of error were allowed.
The official bond of the said Miller, declared on, was conditioned as required by law, and it was alleged that when so sued out the said distress warrants were placed in the hands of said Miller, constable, by the justice, who executed the same on March 2, 1925, by levying on the following personal property (describing it), and the return says, "and left the same in the custody of the said J. F. Parrazack."
And the declarations in each count further aver that theretofore on February 28, 1925, said Davidson had caused notice to be served upon plaintiffs by the said Miller, constable, to vacate the property so occupied, and owned by said Davidson on or before April 1, 1925; and that on June 5, 1925, pursuant to said notice plaintiffs did vacate said property and removed the personal property belonging to them to a house situate at No. 1361 University Avenue in said City of Morgantown, belonging to Ira R. Shriver.
And by way of assigning breaches of said bond, it is further averred that thereafter, to wit, on the 5th day of June, 1925, the said defendant "while acting as such constable and in the execution of said warrant" then and there assaulted the said plaintiffs, and seized and laid hold of them with great force and violence, pulled and dragged and beat and bruised and illtreated them and forced them to go out of the said house and along the public streets of said city and to the county jail and to be imprisoned for the space of twenty-two hours next following, without any reasonable or probable cause. And other acts of violence towards and upon plaintiffs, not necessary to be here set out, are also averred, all "while acting as such constable and in the execution of said distress warrant," resulting in the personal injuries sustained, whereby they were caused to suffer mental and physical pain and anguish, and to pay out and expend large sums of money in and...
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