Walker v. Bradbury
| Decision Date | 31 July 1874 |
| Citation | 57 Mo. 66 |
| Parties | BELFORD S. WALKER, Defendant in Error, v. THOMAS BRADBURY, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Morgan Circuit Court.
A. W. Anthony, for Defendant in Error.
J. A. Spurlock, for Plaintiff in Error.SHERWOOD, Judge, delivered the opinion of the court.
The only question of any practical importance in this case, is whether a sheriff, who, through neglect, has failed to collect money on an execution, and in consequence of such failure, has been compelled to pay the debt to the plaintiff in the execution, can afterwards, in an ordinary action, recover such amount of the execution defendant.
The rule seems to be well settled that a recovery under such circumstances cannot be had. Thus, in Pitcher vs. Bailey, (8 East., 171) it was held that an “officer could not raise any cause of action by the payment of money for another, on account of his own breach of duty.” This case followed that of Eyles v. Faikney, (K. B. Easter, Term.,) 32 Geo. 3.
In Gwynne on Sheriffs, 5, 6, 7, it is stated, that the officer cannot recover “from a debtor, money paid in neglect of his duty, unless when it is specifically provided for by statute.”
In Bigelow vs. Provost, (5 Hill, 566) Cowen, J., in delivering the opinion of the court, remarked:
Whether an officer, who, upon the promise of the defendants, of re-payment or otherwise, satisfies the execution out of his own proper funds, would be entitled to subrogation in equity to the rights of the execution plaintiff, is a question not presented by this record, and whose determination, therefore, would be merely anticipatory.
For these reasons, the judgment will be reversed, and the cause dismissed.
All the judges concur.
To continue reading
Request your trial
-
Bridges v. Stephens
...time in this court. Smith v. Burrus, 106 Mo. 94, 16 S.W. 881; Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire , 80 Mo. 470; Walker v. Bradbury, 57 Mo. 66; R. S. 2047. If the petition states no cause of action, a good cause of action could not be injected into it by any evidence that defend......
-
Clough v. Holden
... ... to its sufficiency, this court of its own motion will raise ... and rule the point here for the first time. Walker ... to its sufficiency, this court of its own motion will raise ... and rule the point here for the first time. Walker v ... Bradbury ... ...
-
Bridges v. Stephens
...time in this court. Smith v. Burrus, 106 Mo. 94, 16 S. W. 881; Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470; Walker v. Bradbury, 57 Mo. 66; Rev. St. 1889, § 2047. If the petition states no cause of action, a good cause of action could not be injected into it by any evidence ......
-
Smith v. Burrus
...taken advantage of for the first time on appeal. R. S., sec. 2047; Sweet v. Maupin, 65 Mo. 65; McIntire v. McIntire, 80 Mo. 470; Walker v. Bradbury, 57 Mo. 66. The authorities are in conflict as to whether petition states a cause of action which merely alleges that a civil action brought an......