Henoch v. Chaney
61 Mo. 129
Mo.
1875
Check Treatment
Sherwood, Judge,

delivered the opinion of the court.

Action on an instrument in the nature of a replevin bond taken in the sum of $1.20 by a special constable, in a suit before a justice of the peace. The defendant was one of the sureties on that instrument, and successfully demurred to the petition which assigned breaches thereof.

I.

Section 20 of chapterl78, Gen. Statutes, authorizes a justice of the peace, upon being satisfied that “ any process authorized by this chapter” will not be executed for want of an officer to be had in time to execute the same, to empower any suitable person to execute such process by a return thereon, indorsed to the following effect: “ At the request and risk of plaintiff, I authorize-, to execute and return this writ.” E. E., Justice of the Peace.

The above mentioned chapter refers alone to the service of ordinary process, and not to the claim and delivery of personal property, or to the method of procedure adopted in such cases, a subject which is exclusively treated of in the next chapter, i. e. chapter 179.

Chapters from 177 to 185, inclusive, have all been incorporated into chapter 82,2 vol. Wagn. Stat., and the language of section 20, before referred to, remaining unchanged, the mistake might be very readily made, that the provisions of that section were applicable to the service of any process specified in the last cited chapter, which, as before intimated, embraces not only the service of process, and the method of that service in ordinary eases, but also process and the manner of its execution in suits for the recovery of personal property. And it is only by an examination of chapters 178 and 179 of the General Statutes, that the inapplicability of the section under consideration to proceedings for the recovery of personal property, is to be ascertained. The instrument in question, however, although possessing none of the attributes of validi*132ty as a statutory one, yet inasmuch as it is not in contravention of public policy, nor violative of any statute, is still of obligatory force on the parties executing the same, notwithstanding it was taken by a person on whom no power was conferred by the indorsement of the writ. (Barnes vs. Webster, 16 Mo., 258, and cases cited.) Nor is it a matter of any importance that the instrument sued on is not in strictness a bond or specialty, in consequence of lacking the word seal. It is nevertheless a written contract, based upon an adequate consideration, and this is sufficient. In addition to that, it is the precise form prescribed by the statute, (Wagn. S-tat., 818, § 6), and so far as mere form is concerned, would be open to the same objection if taken by an officer confessedly authorized.

II.

No doubt is entertained that the Circuit Court had jurisdiction over the subject matter of this suit. The cases cited in McDermot vs. Doyle (11 Mo., 443), were cases involving the suing out of writs of scire facias on forfeited recognizances, which, as a matter of course, had to be issued from the court where the recognizance was entered into, and do not perhaps apply where a suit is brought on a bond. But, conceding the correctness of the ruling in McDermot vs. Doyle, this concession does not at all militate against the jurisdiction in the present instance, as the replevin suit was taken by appeal from the justice before whom instituted, to the Pettis Circuit Court, in which the, default and failure of the plaintiff, whose surety is now sued, took place. So that according to the defendant’s own authority, the Pettis Circuit Court was the only forum where suit could have been properly brought. Again, if the defendant’s position be correct, that this suit should have been brought before the justice of the peace where the replevin suit was instituted, it involves this difficulty, that in that event the plaintiff would be without remedy, as the justice of the peace would have no jurisdiction in á suit of that character. (Wimer vs. Brotherton, 7 Mo., 264.)

*133III.

When the petition upon its face shows that the time has elapsed in which suit may be brought, the defect may be reached by demurrer. (Boyce vs. Christy, 47 Mo., 70, and cases cited.) In the case at bar, over five years had intervened between the accruing of the right of action, and the institution of suit, and were the question an open one, we might not be able to yield assent to the idea that ten years instead of five, is the statutory bar applicable to the case before us. But regarding the point as settled in the case of Martin vs. Knapp (45 Mo., 48), the conclusion there reached will be adhered to.

The result is, that the judgment must be reversed and the cause remanded.

The other judges concur.