Henderson v. Plumb

DARGAN, C. J. The plaintiffs notified the defendant, who is a constable, that they would move for a judgment against him before a justice of the peace for the amount of an execution with interest thereon, for failing to return the same within the time prescribed by law. The amount of the execution as described in the notice is fifty dollars, besides two dollars cost. The plaintiffs remitted, on the trial before the justice, all right to recover over fifty dollars. Judgment was rendered in favor-of the defendant, and the plaintiffs appealed to the Circuit Court, but an appeal bond was not executed until some months after the appeal was granted. The defendant moved the Circuit Court to dismiss the suit, because the amount which the plaintiffs were entitled to recover was over fifty dollars. He also moved the court to dismiss the appeal, because the appeal bond was not executed within five days from the time the judgment was rendered. These motions were refused, and the defendant excepted. The constitution, it is true, limits the jurisdiction of a justice of the peace to fifty dollars, but by the decisions of this court the rule is settled that a plaintiff may remit of his demand all over fifty dollars, and thus bring his case within the jurisdiction of the justice. — Nibbs, use &c. v. Moody, 5 Stew. & Por. 198; King v. Dougherty, 2 Stew. 487; Bently v, Wright, 3 Ala. 607. It is, however, contended that the recovery in this case being in the nature of a penally, the plaintiffs could not remit a portion of their demand, so as to entitle them to sue before a justice of the peace. The amount of recovery against a constable for failing to return an execution is given by statute, it is true, but we can see no reason why a plaintiff should be entitled .to remit all over fifty dollars, and recover before a justice, when his demand arises out of contract, and yet [77] be denied the right to remit, when his demand arises from the failure of a constable to return an execution. The amount which the plaintiff is entitled to recover against a constable for failing to return an execution is governed by the amount of the execution, and we think there is as much reason for allowing a plaintiff to remit a part of this demand, and thus bring his case within the jurisdiction of the justice, as there is for allowing him to remit a portion of his debt due by contract to enable him to sue in a justice’s court. 2. Nor is it material when the appeal bond was executed, so the appeal was taken in the proper time. — See Johnson v. Hale, 3 Stew. & Por. 331. Indeed it is the constant practice to allow a bond to be given after the appeal is brought up, if the bond taken by the justice should be defective. It would therefore follow that an appeal could not be dismissed for the want of a bond, if the party appealing will give bond when the motion to dismiss is made. 3. It is also insisted that there is error, because no declaration or statement of the cause of action was filed in the Circuit Court. This very point was ruled against the plaintiff in error, in the case of Coudry et al. v. Henly & Murphy, 4 Stew. & P. 9. In that case, a motion under the statute was made against a constable and his securities, before a justice of the peace, for failing to return an execution. The cause was removed to the County Court, and there tried without a declaration, and this court held that none was necessary. We can discover no error in the judgment, and it must be affirmed.