23 Mo. App. 429 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This is an action of forcible entry and detainer. The defendant is the sheriff of the city of St. Louis, and is sought to be held liable for entering the plaintiff’s premises against the plaintiff’s consent, in levying a writ of attachment on certain goods therein, belonging to a third party, and assuming exclusive control of the premises for a period of twenty hours or more, without the consent of the occupant, express or implied.
■The action was instituted by the occupant of the premiseá, who upon the trial gave evidence tending to substantiate the facts as above set forth. The sheriff demurred to the evidence, and the court sustained the demurrer, and entered judgment for the defendant, hence this appeal.
We are informed by counsel for the appellant that this suit was designed to test the extent of the right of executive officers to take possession of premises, which are not in the actual occupancy of the attachment
The purpose of the act concerning forcible entry and detainer, is the protection of the citizen against the forcible invasion of private property, by persons acting without authority of law. This was intimated in Drehman v. Stifel (41 Mo. 205) and we are aware -of no ruling to the contrary in, or out of this state. The sheriff is bound to levy a writ of attachment upon the goods of the debtor in the attachment wherever they may be found, and in doing so is not liable even in trespass to the person upon whose premises such goods may be. If he uses unnecessary force in entering premises, or, having entered them, continues to occupy them for. a longer time than is reasonably necessary for the removal of the goods levied upon, and does so without the consent of the occupant, express or implied, he becomes liable in an action of trespass. Davis v. Stone, 120 Mass. 228. But while he acts in the honest performance of a legal duty he. can never subject himself to the highly penal action of forcible entry.
The court might have properly non-suited the plaintiff on that ground alone, although the plaintiff’s failure to prove that the sheriff still occupied the premises when this action was brought, was a defect of proof equally fatal to the plaintiff’s recovery. Armstrong v. Hendrick, 67 Mo. 542.
'All the judges concurring the judgment is affirmed.
