64 Ind. 260 | Ind. | 1878
Suit by the appellant, against Isaac Forry, as constable, and the other appellees, as his sureties, on his official bond.
The complaint avers the election of Forry as constable, that he gave the bond sued on, and entered upon the duties of the office, making the bond an exhibit. The breach alleged in the complaint is as follows :
That, on the 11th day of September, 1876, the relator filed his complaint before a justice of the peace, alleging that Joseph Maist unlawfully detained certain personal goods, describing them, the property of the relator, of the value of fifty dollars, alleging that the same had not been taken by virtue of an execution or other writ against him, asking a return of the property and damages for'its detention in the sum of fifty dollars, all of which was verified by his affidavit; and he also gave the proper bond, which was approved. A second paragraph in that. complaint charged Maist with embezzling one hundred and six dollars of the money of the .relator, which he had received as his agent, demanding judgment for one hundred and six dollars “ additional; ” that a writ of replevin and summons were issued against Maist, which were duly served, and returned no property found, and the suit proceeded, under the statute, for damages ; that Maist made default, and the justice rendered judgment against him for the sum of one hundred and
A demurrer, on the ground of the insufficiency of the facts stated, was overruled to the complaint, and exceptions reserved.
The case was then submitted to the court, and a finding had in favor of the defendant. The appellant excepted, reserved the questions of the law under section 347 of the code, appealed to this court, and has assigned errors herein.
The appellee has also assigned, as cross error, the overruling of the demurrer to the complaint.
The facts upon which the appellant reserved the questions of law are so essentially the same as the averments in the complaint, that Ave think the merits of the case are presented by the cross error. .
Two questions are presented by the record, and discussed in the briefs : Had the justice jurisdiction of the case ? If so, had he the poAver to quash the writ of execution and order its return ?
The conclusion, therefore, follows irresistibly, that the justice had no jurisdiction over the amount claimed; and it also follows, that the judgment he rendered in the case was void; and, further, it follows, that a constable can not be made liable for not executing a writ issued on a void judgment. The complaint, therefore, founded on the constable’s official bond, is insufficient,, and the appellee’s demurrer to it should have been sustained. Bainum v. Small, 4 Ind. 49 ; Culley v. Laybrook, 8 Ind. 285 ; Guard v. Circle, 16 Ind. 401; Leathers v. Hogan, 17 Ind. 242 ; Boggs v. Near, 20 Ind. 395; Harrell v. Hammond, 25 Ind. 104; Caf
"We do not examine the second question, as the decision of the first disposes of the case; but, should the second question arise again, the following authorities may be consulted : Walpole v. Smith, 4 Blackf. 304; Culbertson v. Milhollin, 22 Ind. 362; Foist v. Coppin, 35 Ind. 471.
The judgment is affirmed, at the costs of the appellant’s relator.