State ex rel. Engle v. Smith

SMITH, P. J. This is an action against a constable and his sureties on the official bond of the former. The breach of the bond assigned by the relator was, in substance, that an execution had been issued by a justice of the peace on a certain judgment dated May 9, 1895, and returnable ninety days thereafter — or on August 7, 1895 — and that on August 9, the said justice did, by his indorsement thereon, undertake to renew the same for another like period; that on October 30, the said defendant Smith, to whom said execution was directed and delivered as constable, levied the same on certain property of the defendant therein, who is the relator in this action, and subsequently sold the same, etc. The answer put in issue these allegations of the petition. The vital issue in the case, as made by the pleadings, was whether or not the justice undertook to renew said execution on August 9, two days after it had become fundus officio. If the affirmative of this issue was found, it is clear that the defendant constable was armed with no valid writ justifying the seizure and sale of the relator’s property, or, in other words, [674] his acts were in that behalf but those of a trespasser, for which there was liability; and if, on the other hand, the negative of the issue was found, the writ afforded him ample protection for the seizure and sale. The relator adduced evidence tending to prove that the date of the renewal indorsed on said execution had been changed from August 9 to August 5. The justice’s docket, which was introduced in evidence by the relator, showed that said execution had been renewed August 5, 1895. The justice who issued the execution testified, without objection, that he renewed the said writ on August 5, 1895. He further testified that by inadvertence he indorsed the renewal as of August 9 but entered the true dalte thereof, which was August 5, 1895, on his docket; and that at the time of the second renewal he changed the indorsement of the first renewal from August 9 to August 5, the true dalte, and the date he had previously entered in his docket. It is, in effect, conceded that the first renewal was made on August 5, while the execution was still alive. Notwithstanding this, the relator insists that since, through the inadvertence of the justice, the date of the renewal as indorsed in the execution was the ninth of August — a wrong date — that that date must be taken as the true date of the renewal. The statute — section 6306, Revised Statutes — requires the justice issuing the execution at the request of the plaintiff to renew 'the same from time to time, by his indorsement thereon to that effect, signed by him and dated when made, and also to make an entry of such renewal on his docket. It is thus seen that the indorsement on the execution is not the only evidence of the renewal thereof, but that the entry required to be made in the justice’s docket is also evidence of equal probative force of that fact. Can it be said that, although the undisputed evidence shows that the renewal was, in truth and in fact, made on August 5, and although the justice’s docket shows that it was renewed on that date, that [675] the date of the renewal erroneously indorsed on the execution must be taken as conclusive evidence of ¡the date of such renewal, and in that way the execution may be invalidated, and the constable, in acting under it, thereby made a wrongdoer? The statute no more makes the indorsement of the renewal on the execution conclusive, or the only evidence of the date thereof than it does the recital of that fact in the docket entry of the justice. Neither'is conclusive of the fact where ithere is a variance, as here. The indorsement was not-the only evidence of the date of the renewal. Whether the execution was not renewed until the ninth of August, after it was dead, was, under the pleadings, an issue of fact for the triers to determine from all evidence, in which was included the entry in the justice’s docket, the testimony of the justice as to the true date of the renewal, as well as the indorsement on the writ, as originally made. Even if the justice was without authority to change the date in the renewal indorsed on the writ, yet, 'in the view we take of the ease, if he had not made such charge the defendants would not have been thereby concluded to show by other -equally competent evidence the true date of such renewal, and if it was made during the life of the execution then, of course, neither it nor the levy thereof were void. The view of the law of the case taken by the trial court, as outlined in its instructions, accords with that hereinbefore expressed by us. The relator further insists that the writ is invalid and did not afford the constable any authority for the action taken by him under it for the reason that the justice issuing it was without the requisite jurisdiction so to do. It appears that the writ was issued on a judgment for costs in a certain mis-' demeanor case — an action for common assault. The relator was the prosecutor and the prosecution was dismissed by the state’s representative, and the relator, as such prosecutor, was adjudged by the justice to pay the costs of the prosecution. It [676] was a case where the rel-altor set on foot the prosecution for an assault on" his infant son. Under section 4358, Revised Statutes, the justice in such case was invested with jurisdiction to adjudge the cost against ithe relator. State ex rel. v. Hodges, 53 Mo. App. 532. And as the justice had jurisdiction of the subject-matter the constable was not required to look beyond the face of the writ. It was not material whether the judgment was or was not good if the justice had jurisdiction of the subject-matter, as he did. The law has long been settled in this state that an execution emanating from a court having jurisdiction will justify an officer in making a levy. State to use v. Shacklett, 37 Mo. 284; Howard v. Clark, 43 Mo. 344; Railway v. Lowder, 138 Mo. 533, and cases cited in defendants’ brief. No error is perceived in the action of the court either in the admission of testimony or in the giving or refusing of instructions that is, in any way, prejudicial to the relator on the merits. The case was fairly tried and the judgment is, as we think, for the right party and will accordingly be affirmed. All concur.