49 Mo. 176 | Mo. | 1872
delivered the opinion of the court.
The simple question in this case is whether the court committed error in refusing the declaration of law asked for by the defend
The case shows that shortly after the judgment was rendered an execution was issued to the sheriff of Vernon county, where one of the defendants resided; and it is claimed that the same was satisfied by his delivering to the sheriff a county warrant in satisfaction of the debt, and that the sheriff received the money thereon. There was evidence tending to prove this fact. On the other side there was evidence tending to negative it.
The cause was tried before the court sitting as a jury, and the defendants requested the court to declare the law to be that if one of the defendants put into the hands of the sheriff of Vernon county a county warrant for $1,150, or any amount sufficient to pay the-.execution, or if said warrant was in the sheriff’s hands, belonging to said defendant, and he directed the sheriff to take said warrant, and it was so taken, in satisfaction of the execution, then the execution was thereby paid off. This instruction the court declined giving, and then found for the plaintiff.
The warrant was an instrument or evidence of debt, which was capable of being seized and levied upon by the sheriff, and it was his duty to collect the money on it and apply it to the execution when it came into his hands. (R. C. 1855, p. 741, § 18.)
In Blair v. Caldwell, 3 Mo. 353, it was held that when property sufficient to satisfy an execution was levied on, it was a satisfaction of the judgment. The subsequent case of Williams v. Boyce, 11 Mo. 538, was decided upon special facts, and does not at all impair the authority of Blair v. Caldwell.
If the sheriff received the warrant in satisfaction of the execution, it also satisfied the judgment; and if loss resulted to the' creditor in consequence of the act of the sheriff, his Recourse would be against that officer and his sureties upon his official bond. I think the instruction should have been given. Whether-the evidence would have justified a verdict in accordance with the .declaration, is not for us to decide. That was a matter belonging only to the triers of the fact. We only say that there was sufficient testimony to authorize the court in giving the instruction.