Harper v. Moffit
11 Iowa 527
Iowa
1861
Check Treatment
Baldwin, J.

This cause was submitted to the court, and the only question that is presented for our determination is, whether the defendant, Moffit, was guilty of negligence in the discharge of his duty as coustable by permitting a wagon upon which he had levied an execution in favor of plaintiffs to be stolen from him.

The positions assumed by the counsel for appellants, that the return of the officer is grima facie evidence against him, and that the court erred in permitting the defendant to introduce evidence to contradict the return in this case, seem to be inapplicable to this case. The return shows that the officer levied on the wagon, but fails to show any disposition of the same by sale, release or otherwise. The plaintiffs, in their petition, charge that the officer negligently permitted the same to be stolen from him. ’ Upon this allegation the defendants joined issue. We do not now undertake to say how far the defendant would have been liable, had the plaintiffs charged the defendant with a malfeasance *530in his office, by having levied upon property and failed thereafter by his return to account for the same. The plaintiffs, however, account for the failure of the officer to make his return, by charging that he neglected to discharge his duty. This was a question of fact upon which the jury, or the court ^ which acted in the place of a jury, could properly find; and the evidence does not so far fail to support the finding of the court as to justify our interference.

Judgment affirmed.