22 Mo. App. 303 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This action is brought on the official bond of the ■defendant Rayburn, as sheriff of Dunklin county, to recover special damages alleged to have been sustained through a breach by the sheriff of the said bond in re
The cause was removed, by change of venue, to the circuit court of Butler county, where a trial was had before the court sitting as a jury, which resulted in a verdict and judgment for the defendant, from which the plaintiffs appeal.
The record does not show that any evidence was given at the trial tending to sustain these allegations of special damage. It does not show that evidence was given tending to show that an execution had been issued upon the judgment above named and returned nulla bona, nor does it show that any evidence was offered tending to prove that the plaintiffs had failed to collect their debt and costs, or that Spiller, Haynes & McRee were insolvent. On the contrary, so far as the record discloses, all the evidence presented at the trial was directed to the fact of the bringing of the suit by the plaintiffs against Spiller, Haynes & McRee, the issuing of the attachment therein, its levy by the defendant Rayburn on-the books of account of Spiller, Haynes & Mc-Ree, his release of the levy, with the attending circum
I. In this state of the record we are pressed to affirm the judgment, on the ground that, without reference to the rulings of the court in the progress of the trial, not even nominal damages could have been recovered by the plaintiffs. We are of opinion that we cannot affirm the judgment, for this reason, because the plaintiffs were entitled to nominal damages. An examination of the authorities shows that nominal damages are constantly given for the most barren infractions of legal rights, and wholly without reference to the question whether such infractions have resulted in loss to the plaintiff or not. 1 Suth. on Damages, 9, et seq. Our courts have constantly recognized and acted upon this rule. Jones v. Hannovan, 55 Mo. 462; Owen v. O'Reilly, 20 Mo. 603; Brown v. Emerson, 18 Mo. 103. In The State ex rel. v. Dunn (60 Mo. 64), the action was upon a constable’s bond, and the breach assigned was, that the constable had taken a bond in an action of replevin, one of the sureties upon which was not qualified. It was conceded that this was a technical breach of the bond, but it was said by Tories, J., that if the other surety was good for the amount of the bond, only nominal damages could be recovered. The same doctrine is found in decisions in other jurisdictions which have considerable analogy to the present action. The State ex rel. v. Hammond, 72 Ind. 472 ; Dato v. Humbert, 91 U. S. 294; Clifton v. Hooper, 6 Q. B. 468. It, therefore, appears that the plaintiffs, if they succeeded in proving a breach by the defendant Rayburn of his official bond, were entitled to recover nominal damages. In jurisdictions where nominal damages do not carry costs, courts have refused to reverse judgments in order to allow the plaintiffs to
II. The answer set up two defences. The first was, that the books and accounts, upon which the levy was alleged to have been made, belonged at the time to J. S. Kochtitzky & Co., and that the attachment defendants had no interest in them at the time. The second was, that the plaintiffs were, at the time of the alleged levy, informed of the ownership of the books, as above stated, and that indemnity was demanded, which the plaintiffs promised, but failed and neglected to give. The second of these defences might have been stricken out, on motion. It was not good in point of law. Outside of the local statute, known as the sheriff and mar.shal’s act, applicable, only to the city of St. Louis and the county of St. Louis, there is no provision of law allowing the sheriff to demand an indemnifying bond in an attachment suit when the goods levied upon are claimed by a third party, though such a provision exists in the case of a levy under an execution. “ In all cases of seizure of personal property, under attachment, the officer is compelled to determine, at his peril, whether the property seized is that of the defendant in the writ. And after it comes into his possession, he holds it as an officer, for the true owner, whether such owner’s right
III. The attachment suit in which the books of account of Spiller, Haynes & McEee had been levied upon, was prosecuted in the circuit court of Hunldin county. The attachment, with the sheriff’s return thereon, was one of the records of the circuit court of that county. This action was originally brought in that county, but was removed by change of venue to Butler county. On the trial, of this action, the circuit court of Butler county allowed the sheriff to amend his return to the attachment by writing an amended return, so called, upon the copy •of the writ of attachment which had been certified by the clerk of the circuit court of Dunklin county, and which was used by the plaintiffs in this suit in Butler county, as a mere instrument of evidence. This ruling was clearly erroneous. Whether the circuit court of Dunklin county could have properly permitted the sheriff to amend his return to the attachment after an action brought on his official bond in respect of his doings under the attachment, we need not consider, and we wish to be understood as intimating no opinion upon that point. But the attachment was not a record of the circuit court of Butler county. The record in the attachment suit was not removed by the change of venue from the circuit court of Dunklin county to the circuit court of Butler county; only the record in this action on the
■ The judgment will be reversed and the cause remanded. It is so ordered.