Pickard v. Marsh

Opinion by Mr. Chief Justice Eakin. 1-3. By Section 2518, L. O. L., it is provided that “whenever it appears to the justice that any process or order authorized to be issued or made by this act will not be served for want of an officer, such justice may appoint any suitable person not being a party to the action to serve the same; such an appointment may be made by an indorsement on the process or order.” A justice -is powerless to appoint a special constable except in a case provided by statute. The statute has provided the officers by whom process shall be served. However, it contemplates that an emergency may arise requiring the appointment of a special officer, and there might be cases in which the justice has personal knowledge of such an emergency; but if that knowledge could be considered sufficient upon which he might act on his own motion in making the appointment, still the fact should be recited in the record. But ordinarily, and possibly in every case, the facts creating the necessity for such an appointment should be brought to the attention of the justice by the affidavit of some one having knowledge of the facts. It would not alone be sufficient that the constable was not available, but the absence or inability of the sheriff or his deputies to act must also be shown. The reason for this rule is well stated in Gordon v. Knapp, 1 Scam. (Ill.) 489, where it is said: “The statute specifies but two cases in which a justice is authorized to appoint a constable pro tem. The one is to execute criminal process, where the accused is likely to escape; and the other is to execute civil process, where goods and chattels are about to be removed before application can be made to a qualified constable; and in the [195] latter case, as a prerequisite to the power of appointment, it must be shown that goods and chattels are about to be removed. * * And, as a justice is an officer of inferior and special powers, the existence of the causes which would justify him, in deputing an officer to execute process, should be shown; and the kind of process, and the mode of appointing the officer to execute it, should be in strict accordance with the statute; otherwise the appointment is void and the service of the process a nullity.” See, to the same effect: Currens v. Ratcliffe, 9 Iowa 309; McClane v. Rogers, 42 Tex. 214; Hamill v. Ferrier, 8 Colo. App. 266 (45 Pac. 522) ; Union Mutual Fire Ins. Co. v. Page, 61 Mich. 72 (27 N. W. 859) ; Green v. New London County Agricul. Soc., 32 Conn. 95; Dolan v. Topping, 51 Kan. 321 (32 Pac. 1120). Furthermore, the constable cannot be arbitrarily deprived by the justice of the emoluments of the office (Skinner v. Board of Commissioners, 63 Kan. 557: 66 Pac. 635), and it is necessary that the appointment shall be indorsed on the writ, as that is a requirement of the statute above quoted (Davis v. Hamilton, 53 Ill. App. 94; Union Mut. Fire Ins. Co. v. Page, 61 Mich. 72: 27 N. W. 859; Dolan v. Topping, 51 Kan. 321: 32 Pac. 1120). As said in Gordon v. Knapp, 1 Scam. (Ill.) 489, the indorsement may be regarded as the commission of the special constable, without which his execution of the process would be illegal and void. It is only an officer who has taken an oath of office and is under bond for the faithful performance of his duty whose certificate of his doings will be evidence of the fact. Section 62, L. O. L., provides that the proof of service of summons by the sheriff or constable may be by certificate, but if by special officer it must be made by affidavit. The same rule applies to the service of a subpoena, and Section 831 provides that an affidavit may be used to prove service of summons, notice, and other papers in an action or suit. The reason for the rule, as stated in Coffee v. Gates, 28 [196] Ark. 43, is that the special officer who makes the service is bound by neither oath nor bond for the correctness of his return. This rule is recognized by the authorities generally. 32 Cyc. 507; 18 Pl. & Pr. 907; Alderman, Jud. Writs, 169; Barron v. Dent, 17 S. C. 75; Murdock v. Hillyer, 45 Mo. App. 287; Simms, etc. v. Simms, etc., 88 Ky. 642 (11 S. W. 665). Therefore the record shows error in that the justice did not have authority to appoint a special constable and Brock’s appointment was not indorsed on the writ. Brock did not have authority to serve the writ of attachment, and the return of such service by certificate is not proof of the fact. The justice court was therefore without authority to enter as part of the judgment the order for the sale of the attached property and for the application of the proceeds thereof, and the writ of review should have been sustained. The judgment of the circuit court is reversed, and the cause remanded, with directions to sustain the writ and reverse and set aside the order of sale of the attached property, and for such other proceedings as may be proper. Reversed : Rehearing Denied.