53 Mo. App. 652 | Mo. Ct. App. | 1893
— The defendant, at the time marshal of the town of Kirkwood, took upon a writ of replevin one buggy, the property of the plaintiff, in Central township, and removed it from there to Kirk-wood, which is in Bonhomme township. Both townships are in the county of St. Louis. The writ of replevin was issued by the recorder of the town of
Upon the trial of the ease at bar in the circuit court on appeal, the defendant was permitted, against plaintiff’s objections, to amend his return so as to show that he served the writ as town marshal of Kirkwood. The record on that subject contains this recital: '“Before the case was called for trial, on motion of defendant and by leave of Justice Jacobi the clause special constable was erased, and amendment by signing it as town Marshal of Kirkwood was allowed against plaintiff’^. objections to such or any amendment of the return.” The trial, which was had before the court, resulted in a judgment for plaintiff, from which the defendant prosecutes this appeal, and he assigns for error that the judgment is erroneous under the conceded facts.
A special constable appointed upon the plaintiff’s request under the provisions of section 6149, supra, has only power to serve an ordinary summons, and can serve no other writ. The law was otherwise formerly, but the revisors of 1865 have thus limited the power of. such an officer, and it has remained thus limited ever since. Huff v. Alsup, 64 Mo. 51; Fletcher v. Wear, 81 Mo. 524; Mangold v. Donley, 89 Mo. 111. The seizure of the buggy by the defendant as special constable was, therefore, unwarranted and an act of trespass.
We are asked to affirm the judgment with damages, but decline to do so. The plaintiff herein has recovered the greatest value which the evidence warranted, and, while there is no merit in the appeal, there is nothing to indicate that it was not taken in good faith.
The judgment is affirmed.