43 Mo. 344 | Mo. | 1869
delivered the opinion of the court.
The plaintiff brought suit before a magistrate against defendant Clark, as constable, and his securities upon his official bond, for false return, and for failure to pay over money collected. Two
Judgment was rendered for defendants in the Circuit Court* which was reversed in the District Court. Many points are made by counsel, some of which we will consider. The plaintiff’s petition is attacked, and no judgment, it is claimed, can be rendered ■upon it, and if it will sustain a judgment it can only be one for a false return; when the evidence shows that if the constable be in fault at all it is for not paying over money. The petition is double. It improperly combines in one count matters that can be properly joined, but should be in different statements, to-wit: a complaint for false return, and for not paying over money collected. But tho record shows no objection taken to this duplicity below,'and it is too late to make it now. Informalities in pleading should be objected to when they can be rectified by amendment.
The plaintiff claims that the justice of the peace had no.jurisdiction to render a judgment for $217 in favor of Ullman, there
But the constable proceeded further. He was not content-with the performance of his ministerial duties. He assumed the office of a court, and undertook to decide between the conflicting claimants to the property. He might do it — but only at his peril. He has no judicial powers, and is not entitled to the protection necessarily given to courts in making wrong decisions. If he decides rightly, it is well. He cannot be made responsible, because the right party has received the money, and not because he had any power to say who should receive it. If he decides wrongly, he is responsible, because he has refused to pay over the money to the party entitled to it. If we were to recognize his right to pass upon this question by protecting him in his decision, parties would be without remedy, for there is no appeal. Fortunately for suitors, the law has pointed out another way. Section 50, chapter 141, of the General Statutes^ provides a mode for settling all questions of priority between different attaching creditors. The constable should have compelled the parties to avail themselves of the provisions of this statute and procure a legal settlement of the question, and not undertake what is outside of his duties. It is enough for him to obey the mandates of the court; and, when different mandates conflict, resort should be had to the courts, especially when there is an express provision of the statute upon the subject. The constable, Clark, in deciding this question, did so at his peril, and, in deciding in favor of a void judgment, and in paying over the money in his hands to satisfy-it, and in refusing to pay over to the plaintiff sufficient to satisfy his judgment, committed a wrong for which he and his securities are responsible.
This view of the defendants’ liability renders it unnecessary to consider the other points raised upon the record. All the facts