Gott v. Williams

29 Mo. 461 | Mo. | 1860

NaptoN, Judge,

delivered the opinion of the court.

In this case the defendant Williams had obtained a judgment before a justice of the peace in Porter township, of Greene county, against Goodrich and Ricketts, the former of whom lived in Campbell township of the same county. The execution was issued on the 30th of June, 1857, and directed to the defendant Forbes, constable of Porter township. The execution was renewed on the 12th of September, and on the 8th of December the constable levied on a horse, then in the possession of Gott, the plaintiff. The horse had been purchased by Gott of one Canefox, who had bought him of Goodrich, defendant in the execution, about the last of August of the same year.

One question presented by the instructions asked by the defendant is, whether the writ was a lien from the date of its teste. The decision of the court on this point was in accordance with what we understand to be the plain implication of our present statute on this subject. The statute directs the officer to endorse on the writ the time of its receipt, and declares that, from the time of its delivery to the constable, it shall be a lien on the personal property of the defendant in the execution “ found within the limits within which the constable or other officer can execute the process.” (R. C. 1855, p. 964.) Whatever may have been the common law relative to the lien of executions, this statutory provision clearly restricts the period of its commencement to the delivery of the writ to the officer, without regard to the period when it was issued. The refusal of the circuit court to give the instruction which the defendant asked, declaring the law to be that “ during the running of the writ” the execution was a lien, was therefore proper..

Another question presented in a case of this kind, where the judgment is obtained in one township and the defendant resides in another is, whether the lieji reaches the property of the defendant in the township where he lives, or only takes effect from the levy. The statute declares the lien to reach all the personal property of the defendant found “within the limits within which the constable or other officer can execute the process.” Where the defendant lives in one township, 'and the plaintiff in another, or where there are two defendants living in different townships, the suit may be brought in the township where the plaintiff resides, if the defendants or either of them be found therein; and in such cases it is at the option of the plaintiff, who obtains judgment, to have his execution directed to the constable of the township where the judgment is rendered, or to the constable of the township where the defendant resides or has property. In the first case, the officer may execute the writ throughout the county. (R. C. 1855, p. 964, § 6.) The lien in such cases would be co-extensive with the limit of the officer’s jurisdiction, and would therefore reach any personal property of the defendant within the county, after the delivery of the writ into the hands of the officer.

In this case there was no proof as to the time when the execution came into the hands of the constable. There was no endorsement on the execution as the law requires. The docket of the justice was offered with a view to show the time when the execution came to the hands of the constable, but this was excluded. It is not material whether the exclusion was proper or not, since had it been introduced it could not have established the fact sought to be proved by it, nor was it any evidence of it. The statute makes it the duty of the constable to endorse on the back of an execution the time of its receipt. It is no part of the duty of the justice, even if he happened to have a personal knowledge of the time when the writ reached the officer’s hands. A statement, therefore, by the justice, in his docket, upon this subject, is no official act, and is entitled to no weight as a piece of evidence. The constable, having failed to state the fact in his return, might have been permitted to amend his return ; but this was not offered, and the docket of the justice was no evidence on this point, whether properly authenticated or not.

We think Canefox was a competent witness. His testimony shows that it was not his intent to extinguish the claim of Gott, the plaintiff, but merely to save him from all risk. The trespass, if any, was committed on Gott and whilst he owned the horse. He was the proper person to sue. Gane-fox would have been responsible over to him for the value of the horse in the event the suit failed. This responsibility Canefox anticipated by handing over to plaintiff the purchase money, but it would not be reasonable to suppose it was his intention to take an assignment of the right of action for the trespass.

The first instruction given for the plaintiff in this case is manifestly wrong. It leaves out of view altogether the question of property in Goodrich, and the lien of the execution from the time it came into the hands of the constable. We shall remand the case for a new trial. Judgment reversed and remanded ;

the other judges concur.