59 Mo. App. 178 | Mo. Ct. App. | 1894
This is a suit brought on a constable’s official bond. The petition assigned, as a breach of the conditions of the bond upon which the cause of action is based, that one Beck, a nonresident of the state of Missouri, was indebted to relator in the sum of $238.23 as principal,' and $36.23 as interest. That, on the thirteenth day of October, 1892, relator brought suit by attachment against Beck, for said indebtedness, befoi'e W. H. McGarth, J. P. That the justice issued a writ of attachment in said cause against Beck, directed to defendant Francis, as constable, commanding him to attach a sufficient amount of Beck’s property to satisfy relator’s debt. That at the time of the delivery of said writ of attachment, and for several days thereafter,
The trial court sustained a demurrer to the petition on the general ground that it failed to state a cause of action; and from a final judgment against him the plaintiff has appealed.
The ruling of the circuit court must be upheld. The plaintiff’s petition failed to state one necessary ingredient to a complete cause of action, to wit: That in his attachment suit against Beck, before the justice of the peace, he had obtained a final judgment in his favor.
The principle involved in Lesem v. Neal, 53 Mo. 412, is applicable here. That was an action on a sheriff’s bond for the unauthorized release of attached property, and there was a plea of the statute of limita
So here, even admitting that the defendant constable failed to levy the attachment on Beck’s property, which plaintiff Wetzler pointed out to him, yet this may not have done any real injury to Wetzler, for it may be that if that suit had gone to trial, plaintiff would have been defeated on the merits, or the attachment dissolved on trial of plea in abatement. The law then very reasonably requires the plaintiff, in this action against the constable and his sureties, not only to allege and prove dereliction of duty on the part of the officer, but that the plaintiff was necessarily damaged thereby. And he.could not be injured, unless he had then a valid claim against the defendant, and there existed legal grounds for attachment. The existence
But it is contended that in the attachment suit of Wetzler v. Beck, the justice had no jurisdiction to proceed with the case, since there was not in fact anything levied on, nor was there personal service on the defendant. It is a sufficient answer to this contention to say that neither party to that action could, in that suit, question the constable’s return, and that return showed a valid levy.
Judgment affirmed.