This is a suit on a constable’s bond for damages alleged to have accrued on account of a false return on a writ of summons. Relator recovered and defendant prosecutes the appeal.
It appears that Daniel and Michael P. Larkin, doing business as Larkin Brothers, instituted their suit on an account of about one hundred and fifty dollars against the relator, Polster, before a justice of the peace and a writ of summons was duly issued thereon. Defendant constable, through his deputy, made a return on the summons to the effect he had served the same in accordance with the statutes upon relator, Polster, by delivering a true copy thereof to a member of his family, over fifteen years of age, at his usual place of abode in the city of St. Louis. It is said that there was a mistake by the defendant’s deputy as to the fact in serving the process; that instead of delivering the writ to a member of Polster’s family at his usual place of abode he de
It is conceded relator learned of the suit against him before the justice some four or five days before the day appointed for trial through the courtesy of the gentleman to whom the copy of the summons was delivered in mailing it to him. Relator says that, although he thus had indirect notice of the suit, he did not appear before the justice of the peace for the reason, first, that no writ of summons had been served upon him, and, second, that he did not owe'the account sued upon. It is in evidence that relator was an officer of a corporation which had contracted the indebtedness for which suit was filed against him and that the debt for which the judgment was given against relator on the false return was the debt of such corporation and not his. After judgment was given by the justice against relator in that suit, and the time for an appeal had elapsed, a certified transcript of the proceedings had before the justice was obtained by plaintiffs Larkin Brothers in that case and filed in the office of the clerk of the circuit court of the city of St. Louis, to the end of affixing the lien of such judgment on relator’s real estate. Upon relator' Polster’s learning the fact that a transcript judgment of the justice of the peace had been filed in the office of the circuit court and that a judgment lien to that extent had thus been established against his property, he discharged the same and instituted this suit on the constable’s bond as for a false return of the summons, seeking to recover the amount he was thus compelled to pay out in order to discharge his property of the judgment lien. On the trial there was an abundance of evidence given to establish the fact that the defendant con
For the purpose of showing a judgment was actually obtained on such false return and that relator was required to pay the same in order to relieve his real estate from its lien, relator introduced in evidence the judgment given against him by the justice and showed the fact of its filing in the office of the clerk of the circuit court. The judgment of the justice of the peace given in evidence recited the fact that relator Polster, who was the defendant in the summons and in that judgment, actually appeared before the justice and contested the cause of action therein sued upon. At the conclusion of the evidence for relator defendant requested the court to instruct a finding for him on the theory that, although the evidence showed a false return had been made on the summons, the judgment of the justice rendered thereon and introduced by plaintiff recited the fact that relator Polster, defendant in the justice’s judgment, had actually appeared before the justice and therefore waived his right to complain of the false return. The court denied the request and proceeded with the case.
It is argued here for defendant the court should have instructed a finding for him for the reason that though it appeared a false return was made, relator Polster, defendant before the justice, actually received notice of the pending suit and appeared and contested the same. It is said that relator, having introduced the judgment of the justice of the peace which disclosed that he appeared before the justice by his attorney in the suit of Larkin Brothers against him, is concluded by this recital for the reason the recitals of that judgment may not be attacked or contradicted in this collateral proceeding. The theory of the argument is that, though
There can be no doubt that the justice of the peace had complete jurisdiction over the subject-matter of the action in which the false return was made and in so far as that matter is concerned, the question of jurisdiction relates to the person only. Though the return of the constable was false or though no service whatever was had upon Polster, by appearing before the justice of the peace and contesting the suit, he waived his right to complain of the result of that judgment except in a direct proceeding by appeal or in equity. In other words, the judgment before the justice is conclusive against Polster, defendant therein, when collaterally attacked as here, and the matter is important in this suit for a false return in so far only as it affects the measure of recovery; that is to say, that judgment before the justice concludes the present relator Polster except in a' direct attack from thereafter showing he was not indebted as therein found and determined, but it is insufficient in and of itself to defeat his right of recovery of nominal damages on account of the false return. In every instance the law imposes the duty upon an officer to make a true return and where this duty is breached, it presumes damages, though none actually accrued. The rule proceeds in the interest of the integrity of the law and for the purpose of enjoining an efficient and true discharge of official duty. It is therefore entirely clear that though no substantial recovery may be had plaintiff made a prima facie case entitling him to a nominal sum upon showing the mere fact of a false return, and the court very properly refused to direct a finding for defendant. [State ex rel. Armour Pkg. Co. v. Dickmann, 146 Mo. App. 396, 124 S. W. 29; State to use Goddard, etc., Co. v. Rayburn, 22 Mo.
However this may be, the recitals in the judgment of the justice of the peace to the effect that the present relator Polster, who was defendant in that judgment, appeared by his attorney and contested the action are conclusive against Polster’s right to a substantial recovery in this suit on the false return. Throughout the trial, defendant sought to invoke the recital mentioned in the justice of the peace judgment but the court proceeded as though such recitals were prima facie only and that it was competent to show by parol the contrary to be the fact. Relator Polster was permitted to testify that though the judgment before the justice recited he appeared by attorney and contested the action, etc., it was untrue in every respect; for though he had notice four days before, he made no appearance. The court instructed that an appearance of defendant to a trial on the return day of the summons, cures all defects of service, but refused to instruct at defendant’s request, to the effect it was not competent to falsify the judgment of the justice by parol evidence, and found the issue for plaintiff for the full amount sued for. In other words, the court proceeded on the theory it was competent to contradict, by parol, the recital of the justice of the peace judgment that Polster had appeared and contested the action, and permitted relator to show that though the judgment disclosed a determination to the contrary he in fact did not owe the debt which he had been compelled to pay because of the justice of the peace judgment against him. Evidence was received on the part of relator tending to prove the debt sued for by Larkin Brothers before the justice was one contracted by a corporation of which plaintiff was an officer and for which he was in no way responsible. And, notwithstanding the judgment of the justice disclosing a judicial determination to the contrary, a judgment was given for relator in this action for the full amount he
The judgment will be reversed and the cause remanded to be proceeded with in accordance with the views herein expressed. It is so ordered.