State v. Stokes

• Decision Date: 03 March 1903
• Citation: 99 Mo. App. 236,73 S.W. 254
• Parties: STATE ex rel. CLEMENT v. STOKES.
• Court: Missouri Court of Appeals

73 S.W. 254

99 Mo. App. 236

STATE ex rel. CLEMENT v. STOKES.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

CONSTABLES — EXECUTION — REFUSAL TO SERVE—OBJECTIONS—RIGHT TO URGE—MANDAMUS — TERMINATION OF CONTROVERSY — COSTS.

1. In an action against a constable for failure to execute a writ, he was not entitled to defend on the ground that prior to the entry of judgment the parties agreed to dismiss the cause, and that thereafter plaintiff took judgment and caused the execution to issue.

2. An alias execution issued on a justice's judgment was not invalid because prior executions were returned by plaintiff's direction before they had run 90 days.

3. A constable in whose hands an alias execution was placed for service was not entitled to refuse to serve the same on the ground that prior executions issued were invalid.

4. Where a constable refuses to execute an alias execution on a judgment awarding possession of land, he may be compelled to enforce the writ by mandamus.

5. Where, pending mandamus to compel a constable to execute a writ awarding possession of certain property to relator, the defendant in the original action vacated the premises, and it was thereafter determined that relator was entitled to mandamus, the vacation of such premises did not relieve the officer from liability for costs.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Mandamus by the state, on relation of Eugene Clement, against J. D. Stokes. From a judgment in favor of defendant, relator appeals. Reversed.

Butts & Lydy, for appellant. Hamlin & Mason, for respondent.

Opinion.

GOODE, J.

The facts of this case are in the main the same as those of State ex rel. Clement v. Rainey, 73 S. W. 250. That case was an action against Rainey and the sureties on his bond as constable, instituted by the relator, Clement, because of the refusal of Rainey to serve an execution issued by a justice of the peace, commanding him to put the relator in possession of certain premises; he having obtained judgment for the possession thereof before the justice who issued the writ. The present action was instituted to compel the defendant, Stokes, to whom an alias execution had issued of the same tenor, to serve that writ by making restitution of the premises to the relator. The alternative writ of mandamus alleges the issuance of the execution, its delivery to Stokes, and the latter's refusal to serve it, with other necessary allegations to entitle the relator, if the...