Benninghoof v. Finney

| Ind. | May 15, 1864

Worden, J.

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 as the property of Gástele, and took from the latter a delivery-bond, for the delivery of the property on the day fixed for the sale thereof. On the day fixed for the sale Barker failed to attend, although the property was there ready to be delivered to him, and in consequence of Barker’s failure to attend the plaintiff failed to collect his judgment.

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.

The transcript of the judgment and proceedings in the ease of the appellant against Gástele, offered in evidence by the plaintiff does not show that Finney appointed Barker as special constable at all; and this appointment,being required to be noted on the docket, thus making it matter of record, could only be proven by the record. Porter v. Byrne, 10 Ind. 146" court="Ind." date_filed="1858-05-25" href="https://app.midpage.ai/document/porter-v-byrne-7033661?utm_source=webapp" opinion_id="7033661">10 Ind. 146, 150. There is, it is .true, the following statement in the judgment, viz: “August 25, summons issued at the request of the plaintiff, and to William Barker, I). G. P. T., returnable on,” &c. There is also the following statement in the transcript, viz: “Execution issued on 1st day of October, 1861, and to William Barker, D. C. P. T., 18th November, 1861, this execution handed to plaintiff in this cause.

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 justice to note the appointment of a special constable on his docket, and to direct process to him by name, are imperative, and should not be construed to be directory merely. They were intended to furnish the person thus appointed with reeord evidence of his authority to act, and without such evidence of record it seems to us he has no such authority.

Chandler § Hynes, for the appellant. Leiois C. Stinson, for the appellees. Per Curiam.

The judgment below is affirmed, with costs.