22 Ind. 101 | Ind. | 1864
This was an action by the appellant against the appellees, upon the official bond of Finney as a justice of the peace. Issue, trial, finding and judgment for the defendants, a new trial having been applied for and denied.
The case made by the complaint is this: The plaintiff' recovered a judgment before said Finney, as a justice, for 85 dollars and some cents, besides costs, against one Gástele. Execution was issued upon the judgment by the justice, and delivered to one William Barker, who is alleged to have been appointed by Finney as a special constable in the case. Barker levied the execution upon a wagon and a yoke of oxen
The gist of the action, it will be seen, was Barker’s failure to attend at the time and place fixed for the sale of the property.
The case seems to have turned mainly on the question, whether the property was exempt from execution, and if so, whether the judgment debtor had taken the proper steps to obtain the benefit of the exemption.
Error is claimed to have been committed in the admission of improper evidence,- offered by the defendants, as to the contents of a schedule'of property, the paper itself not being accounted for. But in looking through the evidence we think the finding was right independently of all the evidence that was objected to. There is a fatal defect in the evidence designed to sustain the plaintiff’s cause.
We have the following statutory provisions, on which the action is based:
“Sec. 110. "Whenever there shall be no constable convenient, and in the opinion of the justice an emergency exists for the immediate services of one, such justice may appoint a special constable to act in a particular cause; and shall note such appointment in such cause on the docket, and shall direct process to him by his name; and such constable so appointed shall dischai’ge the duties, receive the fees, and have the powers in such case appertaining to the office.
“Sec. 111. The justice appointing such constable shall, with his sureties, be liable on his official bond for any neglect of duty or illegal proceeding of such constable in such cause.” 2 Q-. & H. 607-8.
Much liberality ought to be extended to short and informal entries made by justices of the peace, but the above entries wholly fail to show substantially that Barker was appointed by the justice as a special constable in that case. The abbreviations, “D. O. P. T.,” would seem to imply that Barker was a deputy constable of Perry township, the township in which the justice resided. But deputy constables are appointed by constables and not by justices of the peace. 1 G. & H. 302.
All that can be implied from what appears in the transcript is that Barker was a deputy constable of the township. This view is perhaps strengthened by the fact .that the execution in question was directed, not to Barker by name, as was required if he had been duly appointed as a special constable by the justice, but “to any constable of Perry township.” With such a record, and such an execution issued upon it, we think it clear that Barker could not have justified, as a special constable, a trespass committed by him in attempting to serve the execution; and if he could not, it is clear that the justice is not liable for his failure to complete the service. The provisions of the statute requiring the jus
The judgment below is affirmed, with costs.