| Mo. Ct. App. | Nov 19, 1901
This is an action against defendant and the sureties on his official bond, as constable to recover three dollars charged to have been extorted from relator, Joseph Wheless, as a watchman’s fee for looking after certain fumi
Our statute provides that a constable shall be allowed such compensation as may be awarded by the justice issuing the execution, attachment or other order for “receiving and keeping” property taken on execution. R. S. 1899, sec. 3253. It is for the magistrate to determine what compensation ought to be given (State v. Vasel, 47 Mo. 416" court="Mo." date_filed="1871-03-15" href="https://app.midpage.ai/document/state-v-vasel-8003147?utm_source=webapp" opinion_id="8003147">47 Mo. 416) ; though if he abuses his authority, by allowing an unreasonable or illegal charge, we apprehend it is subject to correction by a superior court on appeal, as an appeal may be taken from an order or judgment taxing costs. R. S. 1899, sec. 4062.
A justice has no right to tax up costs of that kind when the service which the statute intends to compensate has not been rendered. A levy does not, ipso facto, entitle a constable or his- appointed watchman to such a fee; there must be a “receiving and keeping” of property, or some difficulty or expense about the levy beyond a merely formal service of the writ and an -instant acceptance of payment from the execution debtor. The purpose of the statute- is to reimburse the constable for his reasonable outlay and trouble in preserving property which has come into his custody by virtue of a writ,
In the present instance, nothing was required of the officer, according to his own testimony, except a notification to the appellant that he levied the writ and thereupon a receipt of the sum called for. There was no receiving and taking property in the sense of the statute, and no fee for such service was earned. If the custom prevails of taxing a watchman’s fee whenever a levy is made, it is illegal and ought to be abandoned.
'The circuit court gave a peremptory instruction for plaintiff, but afterwards sustained a motion for a new trial on the ground, as stated in said order, that the instruction was erroneous. We see nothing to support this view unless the court considered it had committed error in excluding certain,testimony which respondent offered concerning the date when the watchman’s fee was taxed. The justice of the peace was put on the stand and asked if he remembered the application for the allowance of a watchman’s fee in the ease against Wheless. He answered: “I remember the request; I do not remember the date.” This testimony then followed:
“Q. Just state if you know anything in regard to what occurred on the date of this levy, other than is already on the record; anything outside of that ? A. I only know what Mr. Stinebaker requested of me; that is all I know.”
Objections were interposed by plaintiff to that evidence and it was stricken out. Respondent contends, and the learned circuit judge apparently concluded, that it was competent to show by this oral testimony the date when the magistrate taxed the watchman’s fee as part of the costs so as to exonerate the constable from having extorted the item before it was allowed. The application for the allowance of that
■ That ruling is- therefore reversed and the cause remanded with directions to set aside the order sustaining said motion, to overrule the same and to enter judgment on the verdict for plaintiff.