7551 | W. Va. | Oct 17, 1933
This is an action in debt on the official bond of a justice of Raleigh County. It was instituted by a judgment debtor to recover damages and a penalty alleged to have accrued to him under Code 1931,
The declaration, after setting up the appointment of the special constable, and the liability of a justice and his sureties for the acts of such constable, avers, among other things, that a judgment was rendered against the plaintiff on March 20, 1931; that an order of suggestion was issued on April 16, 1931, returnable on April 28, 1931; that plaintiff herein appeared in person and by counsel, but that the party suggested did not appear, but by some means, not disclosed to the plaintiff herein, admitted liability to the said plaintiff on its part to the amount of $17.75; and paid said sum to the special constable; that on May 1, 1931, plaintiff prepared and executed a proper exemption list, or schedule, showing that he had less than $200.00 worth of property, including said $17.75, and on the same day exhibited and filed the same with said special constable; that although repeatedly requested so to do, the special constable did not turn over said $17.75 to the judgment debtor until September 24, 1931, a period of 138 days after the same should have been released.
By the demurrer, defendants aver that the appointment was void, inasmuch as the justice had no authority to direct such a process to a special constable, and that therefore the usual *207 liability on the official bond would not attach; and further that the declaration failed to show affirmatively that the suggestion order under which the constable received the money was alive and valid during the entire period of 138 days.
May a justice, made liable on his bond for any neglect of duty, default or misconduct of his special constables (Code 1931,
In regard to the second ground of demurrer it will be noted that the declaration avers that the money was turned over by the party suggested, and into the hands of the special officer; in other words, that the money, by virtue of the suggestion, was placed beyond the immediate control of the judgment debtor, where such debtor declares it remained for a period of 138 days. But must the pleader show what became of the schedule which he turned over to the constable on May 1, 1931? The defendant would have him negative the fact that the schedule may have been questioned by the plaintiff in the original action, or that the same was promptly submitted to, or acted on, by the justice. Citing Reeves v. Ross,
Such matters we believe to be purely matters of defense. The failure of the constable to turn over the money after the presentation of the schedule, for a period of 138 days, although often requested to do so, is in effect an allegation *208 that such officer has not performed any of his respective duties in regard to the schedule that was filed by the debtor with him. If the officer has done anything that would mitigate the time of the penalty, such is a matter of defense.
We are of opinion that the judgment of the trial court must be reversed. We, therefore, set aside the judgment, overrule the demurrer to the declaration, and remand the case for trial.
Reversed and remanded.