7 Mo. App. 87 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The petition in this cause has two counts. The first alleges that the defendants took from the possession of the plaintiff, by force and unlawfully, certain personal property, worth $500, belonging to the plaintiff, so that the same was lost to him. Damages to the amount of the value of
It appears from the pleadings and evidence that the defendant Grund, at the date of the alleged trespass, was a constable of St. Louis Township, and that he seized and sold the property described, in the city of St. Louis, at the request of his co-defendahts, by virtue of an execution in their favor against one Thaunfetter. The plaintiff, at the time, was the real owner of the property, having purchased the same from Thaunfetter’s wife, who was trading by herself, having been abandoned by her husband, and whose separate property the goods were at the date of the sale to the plaintiff. The goods never belonged to the defendant in the execution. The defendants, however, acted in good faith ; the execution creditors believing that the goods had belonged to Thaunfetter, and the constable acting by their direction. On- May 31, 1877, the levy was made. The goods were claimed on that day by the plaintiff. The claim was in writing, but did not comply with the statute, in that it did not give the value of the property claimed. The defendants Weiss and Obert then gave bond in the sum of $250 to indemnify the constable. On June 2, the constable removed the property. A second claim was then made, stating the value at $300. The constable then demanded a bond for $600. Iiis co-defendants objected ; an appraisement was had at their request, which fixed the value at $122, and the constable proceeded with the sale. The property brought $117, which was applied on the execution. The jury returned the following, verdict: “ We, the undersigned, jury in the case of Joseph Eichelmann v. Louis Obert, Matthias Weiss, and Louis Grund, find for the plaintiff, and assess damages against Louis Obert and Louis Grund for $400 on the first count and $100 on the
Judgment was entered against Obert and Grand for $500. The verdict is imperfect, and should not have been received. The whole issue is not tried. The cause was not dismissed as to Weiss, and there is no verdict and no judgment as to him. This is substantial error. The defendants, if liable, are jointly liable, and subject to contribution ; and those against whom judgment was rendered have a right to have the question determined whether Weiss is to bear any share of the burden ; and being prejudiced by the error, may take advantage of it. This has been repeatedly adjudged, and was determined by this court in a case recently decided. Schweickhardt v. St. Louis, 2 Mo. App. 582.
As the case must go back for retrial, it is proper to say that it seems to have been tried on incorrect theories of the law in more than one respect.
In the absence of aggravating circumstances (and there seem to have been none in this case), there could be no recovery on the second count, because in trespass for selling property under execution against, another the measure of damages is the value of the property at the time of the trespass, and interest. Walker v. Borland, 21 Mo. 289; Fuank v. Dillon, 21 Mo. 294.
The act concerning sheriffs and marshals is still applicable to cases arising within the city of St. Louis. It is true that the act entitled “An act to conform the laws of the State to section 23, art. 9, of the Constitution,” passed May 2, 1877 (Acts 1877, p. 187), does not name constables. But the separation of the city and county, on October 22, 1876, by the adoption of the new charter and scheme of separation, did not relieve St. Louis from the operation of such laws specially applicable to St. Louis County as were then in force and consistent with the altered circumstances. When the Sheriffs and Marshals Act was- passed, in 1855, it was specially intended for ihe
That the claim made under the Sheriffs and Marshals Act is not strictly in compliance with the law seems to be immaterial. It was held in Bradley v. Holloway, 28 Mo. 150, that the officer would not be protected by a bond given in answer to an informal claim. But subsequently, in The State to use v. Watson, 30 Mo. 122, it was held that it is immaterial whether the claim is made under the third section of the act or not; that it may be made orally; and that if the officer chooses to treat the claim as valid, and demands an indemnification bond, the taking of a sufficient bond relieves the officer from liability to the claimant for the levy or sale. The first claim, in the ease at bar, set no value on the property. The constable demanded and received a bond for $250. A second claim was made, fixing the value at $300. The constable then demanded a bond for double the value stated in the claim. An appraisement was demanded, and the value fixed by appraisement at $122. The law provides that in this case the bond shall be double the appraised value. The bond taken under the first claim
The judgment of the Circuit Court is reversed and the cause remanded.