| Mo. | Jan 15, 1872
delivered the opinion offithe, court.
This suit was brought against the defendant, as sheriff of Cass county, for failing to levy upon goods and lands of an execution-debtor, and for failing to make return of the execution at the proper term. This is not a suit upon the sheriff’s bond. The two causes of action are united in one count, and the damages are charged but once, and are predicated upon both causes of action. The defendant claims that they should be treated as predicated upon the failure to levy, and .that no damages are claimed for failing to make return, and consequently, even if a liability is shown for the latter neglect, the plaintiff can take nothing. The pleading is doubtless bad, but should have been corrected by motion, before pleading over, to require the plaintiff to elect upon which cause to proceed, and that the other be stricken out; but no such motion having been made, the petition is to be treated as regular, with damages separately charged for each breach of duty. (House v. Lowell, 45 Mo. 381" court="Mo." date_filed="1870-02-15" href="https://app.midpage.ai/document/house-v-lowell-8002795?utm_source=webapp" opinion_id="8002795">45 Mo. 381; Mooney v. Kennett, 19 Mo. 551" court="Mo." date_filed="1854-03-15" href="https://app.midpage.ai/document/mooney-v-kennett-7999342?utm_source=webapp" opinion_id="7999342">19 Mo. 551; Otis v. Mechanics’ Bank, 35 Mo. 128" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/otis-v-mechanics-bank-8001549?utm_source=webapp" opinion_id="8001549">35 Mo. 128.)
The cause was submitted to the court, which found for the defendant, and the plaintiff complains of some of the declarations of law. It is true they appear somewhat incongruous, and might perhaps be held as liable to mislead a jury, and therefore
In supporting the first claim they have shown that the sheriff was directed to levy upon certain real estate and a certain stock of goods, but they failed to show that the execution-defendant had any interest either in the land or goods subject to execution. No possession ever was shown in the land, and no exclusive possession, or such as would raise a presumption of an ownership that would subject them to seizure for his debts, was shown in the goods. Hence they failed to make a sufficient case to put the defendant on his defense; and when he offered to prove to whom the property belonged, the court declined to hear the evidence.
, The failure to make return at the proper time is no.t denied, but no damages whatever were proved. Counsel claim that at least the plaintiff is entitled to nominal damages, but this matter is fixed by statute. Section 64 of the act concerning executions (Wagn. Stat. 614) provides that for such failure the “officer and his sureties shall be liable to pay the damages sustained by such defaulthence, an execution-plaintiff has no right to prosecute a sheriff for failing to return the writ, unless he is injured thereby.
The other judges concurring, the judgment will be affirmed.