10 Kan. 70 | Kan. | 1872
The opinion of the court was delivered by
Defendant in error brought suit against plaintiffs in error for certain alleged trespasses committed by them. A. G. Allen justified as constable executing a writ of restitution regular on its face. The suit Avas dismissed as to Wickersham. John D. Allen and Thomas Barton claim to have acted on the call of the constable for assistance in executing the writ. John D. Allen was also the plaintiff in the action before the justice of the peace wherein the Avrit of restitution was issued. Robert Corlew was the defendant in such action. On the trial in the district court the writ of restitution, Avith the return of the constable thereon, Avas •offered in evidence, but rejected because based upon no valid judgment. The AAO’it Avas issued by a justice of the peace having jurisdiction of the subject-matter; it was regular on its face, and commanded the constable to put CorleAV out of and John D. Allen into possession of certain premises, and to make the costs out of the goods and chattels of Corlew. A. G. Allen Avas a constable, and authorized to serve process of this nature issued by such justice. Was he protected in executing such writ, Avithout regard to any irregularities in the judgment, or must he also show a regular and Adalid judgment? This question can hardly be considered an open one, having been settled by repeated adjudications. In 2 Greenl. on Ev., § 629, it is said: “ If the action is by the person against Avhom the process issued, it is sufficient for the officer Avho served it to prove the process itself, if it appear to have issued from a. court of competent jurisdiction, under its seal, and to be tested by the chief justice, or other magistrate whose attestation it should bear, and be signed by the clerk or other proper officer.” See also Savacool v. Boughton, 5 Wend., 170, where the question is discussed at length by Marcy, J., and the rule laid down that “a ministerial officer
The protection afforded the officer is also extended to those acting under him in the service of the process. It does not however extend to the plaintiff in the judgment, even though he also assists the constable. To protect him, he must show a valid judgment. Burns v. Barber, 1 Gilman, 401; Savacool v. Boughton, 5 Wend., 180. The docket of the justice which was offered did not show a valid judgment. So much as is material reads as follows:
• “ Parties appeared, ready for trial. After hearing the- evidence the court decides in favor of the plaintiff against the defendant. Costs taxed to defendant, $6.85.
“ W. Q,. Wickersham, Justice of the Peace.”'
While disposed to regard tolerantly any mere technical irregularities or defects of form in proceedings of justices of the peace, it would be going too far to hold that this was a sufficient recital of a judgment. Plaintiffs in error sought to remedy this difficulty by parol testimony that a judgment of restitution of the premises was in fact rendered by the iustice at
