86 Mo. 327 | Mo. | 1885
— Action on the bond of Ranson, as constable, for failure to execute and levy a certain execution in favor of relator and against Joseph Cochran. The facts in the case appear in the following agreed statement of facts:
“1. That on August 21, 1875, the relator commenced a suit, by attachment, against one Joseph*330 Cochran before Langston Bacon, a justice of the peace in and for Kaw township, Jackson county, Mo., in which suit a writ of attachment was duly issued and directed and delivered to Thomas Fitzpatrick, the then constable of Kaw township, and which said writ of attachment was. duly served personally on said Joseph Cochran, and by attaching the following goods and chattels as the property of said Cochran, to-wit: One walnut bedstead, one walnut bureau (marble top), one marble top washstand, one oak bedstead, one oak marble top bureau, and one oak washstand.
‘ ‘ 2. That on -September 21,1875, the said attachment writ having been duly transferred by change of venue from said Langston Bacon to W. H. Sutton, a justice of the peace in and for said Kaw township, one S. A. Cochran interpleaded, for the goods attached, and on September-21, 1875, judgment was duly rendered thereon against said interpleader and in fayor of said relator, from which, said judgment by said Sutton, justice, the said inter-pleader on September 24, 1875, duly appealed to the Jackson county special law and equity court, where the judgment of said justice on said interplea was duly affirmed on May 23, 1877.
“3. On October 5, 1875, the defendant Ranson,, having been duly appointed constable of said Kaw township to succeed said Thomas Fitzpatrick, together with defendants, Lucius Cary and Aimie Gruinotte and Bernard Donnelly, as his sureties, duly executed and delivered his official bond, a true copy of which bond, and of the approval of the county court endorsed thereon, duly certified by Wm. Z. Hickman, county clerk, is attached to the petition in this cause; and the said goods SO' attached, as aforesaid, duly passed into the possession of said Ranson as the successor of said Fitzpatrick.
“4. The relator’s attachment against said Joseph Cochran was duly sustained, and on November 15, 1875, judgment was duly rendered by said Sutton, justice, in*331 said attachment suit, in favor of relator and against said. Joseph Cochran for $127.15 and costs, taxed by said justice as follows : Justice’s costs (Sutton), $8.75 ; constable’s costs, $6.50; justice’s costs (Bacon), $4.50; A.. W. Moise (two days as witness), $1.00.
“5. On said November 15,1875, execution was duly issued by said Sutton, justice, upon said last mentioned, judgment, and directed and delivered to defendant Ran-son, as such constable of Kaw township, whereby the said Ranson was directed and commanded to levy the said debt, interest and costs recovered by the relator as aforesaid, of the goods and chattels of said Joseph Cochran and the relator on said November 15, 1875, then and there directed and commanded said Ranson to levy said execution on the goods and chattels so attached, as the-property of said Joseph Cochran, and then in the possession of said Ranson as aforesaid ; but said Ranson did not execute and levy said execution on said goods as-commanded, but wholly neglected and refused so to do, and on February 14, 1876, returned said execution wholly unsatisfied ; nor did the said Ranson, on the return of said writ, or at the time the same ought to be returned, have the money in said writ specified or thereon endorsed, and directed to be levied, or any part thereof, before the court, or pay the same according to the exigency of said writ.
“6. On December 11, 1875, the said Joseph Cochran filed his voluntary petition in bankruptcy, in the United States district court for the western district of Missouri, and he was, by said court, on December 13, 1875, duly adjudged a bankrupt. Afterwards, in November, 1876, said Ranson, holding said property, went out of office, and one Samuel Howard, to whom said Ranson then-delivered said property, was his successor in office. And afterwards (after Ma.y 27, 1877, the date of the affirmanceof the judgment on said interplea), on the demand of theassignee in bankruptcy of said Joseph Cochran, said*332 property was by said Howard delivered to said assignee in bankruptcy.”
The trial court, upon the facts thus agreed, refused a declaration of law “that on the pleadings and agreed statement of facts, the finding and judgment must be for plaintiff,” and thereupon gave judgment for the defendants. This ruling we regard as correct. The pendency of the appeal of the interpleader, he having given bond, as he must have done, in order to take an appeal from the judgment of the justice, operated as a supersedeas in the cause and prevented any sale of the attached property pending such appeal. This must be true, or else .such an appeal fails of its customary effect, and is shorn .of its ordinary powers. We see nothing in the statute warranting any view contrary to the one now expressed. It is true section 449, Revised Statutes, provides that when an interplea is made for attached property, that the issues made by the interplea “shall be tried without any unnecessary delay;” but this mandate of the statute is not to be permitted to thwart and override .other statutory provisions, relating to appeals when ac.companied by bonds. In the case of The State ex rel. v. Lewis, 76 Mo. 370, the same position was taken in regard to a writ of mandamus, and it was urged that as, under the provisions of the statute, section 3260, the peremptory writ was tobe granted “without delay,” that these provisions prevented an appeal taken in the cause, bond being also given, from operating as a supersedeas. But this court ruled this position was not law, though in the case of School District No. 11 v. Lauderbaugh, 80 Mo. 190, in which I dissented, it had taken the previously taken, the now repudiated view.
No sound distinction, in my opinion, can be taken between the effect of the statute relating to interpleas .and of that relating to peremptory writs of mandamus. In the former case, as well as in the latter, an appeal with bond operates as a supersedeas, and while the law,
We affirm the judgment.