82 Mo. 455 | Mo. | 1884
This is an action on the bond of a sheriff, which assigns for breach thereof his refusal to offset an execution and fee bill in favor of a defendant against whom he held an execution. It seems that John H. Stewart, for whose use this action is prosecuted, recovered a judgment ■against one Burton, and that Burton recovered a judgment against said Stewart. It is alleged in the petition that executions were issued upon these opposing judgments, and were placed in the hands of defendant, N. G-. Matlock, as sheriff; that instead of offsetting the two demands, he collected the execution against plaintiff’ by levy and sale, and returned the one against Burton unsatisfied. The material facts of the complaint were put in issue by defendants. The case was tried by the court, without the intervention of a jury, and judgment was rendered in favor of defendants, exempting the sheriff from all liability. From this judgment the plaintiff’ appeals.
I. It is assigned for error that the court permitted the defendants to file their answer nine days after the case was set for trial. This was done before any default had been entered, and upon a showing of cause for the.delay in an affidavit. I can see no abuse of its judicial discretion by the court in accepting the pleading at the time it was filed.
II. It is next urged, that the court erred in refusing a change of venue prayed for by plaintiff. The ground of the application was alleged to be an undue influence of defendants over the mind of the trial judge. In my judg
III. It seems from the record the case was disposed! of on an issue of fact, the court finding from the evidence-that two executions were not in the hands of the sheriff at the same time. This fact if true, certainly relieved the sheriff from obligation as well as the power to offset one-against the other. R. S. 1879, § 8877. The evidence on this issue was conflicting, and it was the province of the-trial court to hear it, and decide the issue according to its weight and credibility. It has done this, and its action in that respect is binding upon the appellate court.
No instructions were asked or exceptions saved to the.rulings at the trial, and nothing remains for us but to affirm the judgment; and it is so ordered.