| Mo. | Jul 15, 1847
delivered the opinion of the Court.
■Thomas Moss filed in the Jefferson Circuit Court his bill in chancery making Craft and Hensley defendants, and praying an injunction to restrain the collection of a judgment obtained before a justice of the peace in favor of Craft against him. The bill charges that at a sale of the effects of Jesse Watkins, deceased, by Josiah Craft, as administrator of said estate, one Jesse Shipton purchased property to the amount of $41 33, for which he executed his note, payable twelve months after the date thereof, with the complainant, Moss, as his security. That after the falling due of the note, Craft commenced suit to recover the amount due before a justice of the peace in said county. That judgment was had against the principal and security by default, and execution was issued on said judgment against the principal alone. That the execution was placed in the hands of the then constable of the township in which the defendant, Shipton, resided, who levied the same on Shipton’s property; but did not sell the same for the want of bidders. That aft,er several renewals of the execution and failures to sell the property levied upon, which was ample to pay the debt, Shipton removed to St. Louis
The bill further charges an omission on the part of the first constable to make the money out of Shipton, when the same might readily have been made. That as the constable had made himself liable to Craft, that therefore he, the complainant, is released from his liability on said judgment. That the judgment was obtained against him, Moss, without any service of process or any ^notice whatever, and is therefore irregular and void as against him. That there was a fraudulent combination between the plaintiff, the defendant, Shipton, and the constable, to wrong and to injure the complainant.
The court granted the injunction prayed for. The defendant, Hensley, failed to answer the bill, and a decree nisi was made agtinst him.— The defendant, Craft, answers, admitting the fact that he obtained a judgment before a justice of the peace against the complainant and Jesse Shipton, as charged in the bill; that several executions were issued on said judgment, and property of Shipton was levied upon sufficient to pay the debt, provided it would have sold, but that the same was not sold for the want of buyers, and was permitted by the constable to remain in the possession of the defendant. That the defendant, Shipton, removed to St. Louis, without having paid any part of the judgment, and then he ordered execution against the complainant. That the complainant had notice of the institution of the suit, and that the judgment was legal and regular; denies that he combined or confederated with any one, but asserts that he used all legal and proper means within-his power to make his debt out of the defendant, Shipton, prior to his removal out of the jurisdiction of the justice of the peace.
Upon the hearing-, the complainant offered evidence goii^g to prove that Shipton lived in Hillsboro’, in the county of Jefferson, in the years 1842-3; that Craft came to Hillsboro5 at the request of Hensley, the constable, to attend the sale of Shipton’s property, but found no advertisements nor constable; that Shipton had some town lots in Hillsboro’, a wagon and two or three horses, some cattle, and household and kitchen furniture. That Shipton, about one year after the proposed sale, moved to St. Louis, having sold his house and lot, wagon and horses, prior to his removal; that he is now dead, and his estate insolvent. Hensley, the constable, is living in Jefferson county, has property, and is a good liver.
The defendant offered no evidence. The court dissolved the injunction, and dismissed the bill; whereupon the complainant appealed to this Court. '
It is assigned for error that the court did not perpetuate the injunction because of the insufficiency of the constable’s return on the summons, and reference is made to the case of 'Charless vs. Mamey, 1 Mo. Rep., 382-3, which we think has no analogy to the case under consideration. In that case, the sufficiency of the constable’s return was a question directly at issue and before the court having a revisory power. Not so in the case now before us, for no such relation exists between a justice’s court and a court of chancery; besides, the filing of a bill operates a release of all errors at law, and puts the party asking the aid of a court of chancery upon the equity of his case.
It is next contended, that inasmuch as the constable has laid himself liable to Craft for failing to make the debt out of. the property of Ship-ton, upon which he had levied the execution, therefore Moss is discharged. If the constable be liable to Craft in consequence of his neglect of duty, as charged in the bill, no reason can be perceived why he may not be held accountable to Moss, provided he is compelled to pay the debt of Shipton in consequence of the improper conduct of the constable. It does not necessarily result that when the constable, by his misfeasance in office, renders himself liable to a plaintiff in an execution, that therefore the defendant is discharged. He may waive a remedy more difficult, and pursue another more easy of accomplishment. It is next urged, that a levy having been made by the constable upon the property of Shipton sufficient to satisfy the debt, therefore the judgment is satisfied and Moss discharged. This point might possess some weight in an action by Craft against the constable, but we think is entitled to but little consideration when the return of the officer, upon which the levy is established, shows that the property was not sold for the want of bidders. Thus, the presumption of satisfaction which the law’raises, is repelled by the fact that the property was not sold.