Friar v. McNama

Gill, J. Statement. Friar sued McNama in attachment. The action was brought before a justice of the peace of Prairie township in Audrain county, who issued an attachment- writ directed to “the constable of Prairie township” in said Audrain county. The writ seems to have been served by one Uzzell, constable of Linn township, who, according to his return, levied on certain personal property which was at the time in the possession of McGuire, the inter-pleader. The latter made claim to the property and filed his interplea. At the trial in the Boone circuit court, where the cause was taken by change of venue, the court directed a verdict for the interpleader, and from a judgment in accordance therewith plaintiff appealed. In our opinion the circuit court ruled correctly, and the judgment must therefore be affirmed. The case as made by the record shows the constable of Linn [587] township to have been a mere trespasser. He undertook to serve process not directed to him; the attachment writ commanded “the constable of Prairie township in the county of Audrain” to attach the property of the defendant McNama. This writ, therefore, would furnish no authority to the constable of another and different township, because he was not selected and named as the officer to serve the same. The statute (section 591, Revised Statutes, 1889) provides that “writs of attachment shall be issued and returned in like time and manner as ordinary writs of summons, but may be served by the officer to whom they are directed, in any township in the county in which the suit is instituted.” And further it is provided that constables may serve writs of attachment anywhere throughout their counties. See. 2380. Further provision is also made in section 2381 for cases where the officer is incapacitated from serving the process, wherein it is provided that in case of a vacancy in the office of constable in any township or when the constable is interested in or is a party to the suit, or when such constable refuses to act, the writ may be executed by the constable of an adjoining township 11 to be designated by the justice issuing such process.” The proof here shows that there was an acting constable in Prairie township at the time the justice issued the writ, who was ready to perform the duties, and that he was not a party or in anyway interested in the suit; and, as' already stated, the writ shows that the justice directed this constable of Prairie township to serve the process. A&wkey;fcesLcom-ts: convstaebie.writ: Since Prairie and Linn were adjoining townships of the same county, and the property to be attached was located in the latter township, the jus_ tice had jurisdiction (section 6127); and it was proper for the justice, if he saw fit, to direct a writ to the constable of either [588] township. The selection was made and the constable of Prairie township was designated. He alone, then, was authorized to serve the process, and the action by the constable of Linn township in making the levy should be treated as that of an ordinary trespasser. Barley v. Tipton, 29 Mo. 206; Hickey v. Forristal, 49 Ill. 255; Callaway v. Harrold, 61 Ga. 111; Rudd v. Thompson, 22 Ark. 363; Arnold v. Wynn, 26 Miss. 338; Schwabocker v. Reilly, 2 Dill. (U. S.) 127. wrongfulevy?r* This being so, then it is clear that as the inter-pleader had prior possession of the property attached, claiming the same as a purchaser from the defendant in the attachment suit, he must prevail over the party who wrongfully took it from his possession. The interpleader’s title is good until a better is shown. Wells on Replevin, secs. 109 and 110; Springfield Grocer Co. v. Shackelford, 56 Mo. App. 642; Clarke v. Laird, 60 Mo. App. 290; Boller v. Cohen, 42 Mo. App. 97. Other matters discussed in plaintiff’s brief are immaterial or have no bearing on the controversy; the, foregoing disposes of the case. On the record the judgment is for the right party and will be affirmed. All concur.