Ice v. McLain

Treat, C. J. The chief question in this case is, as to the sufficiency of the special plea. The only objection made to the plea is, that it does not allege that McLain notified the constable in writing of his claim to the property levied on, and of his intention to prosecute the same. It is contended, that such a notice was necessary to vest the justice with jurisdiction, and authorize him to enter the judgment, and issue the execution. The statute declares, that “ In all cases, where any personal property shall be taken, by virtue of an execution or attachment issued by any justice of the peace, which shall be claimed by any person or persons other than the defendant in such execution or attachment, and such claimant shall give notice in writing of his or their claim and intention to prosecute the same, it shall be the duty of the constable to notify the plaintiff in execution or attachment of such claim, and the time and place of trial; and if the justice who issued such execution or attachment reside in another county, be absent from the county, or unable to attend to such trial, it shall be the duty of the constable serving such execution or attachment, to notify the plaintiff in execution that he will attend before some other justice of the peace of the county, (naming him,) and shall also designate some day and hour for the trial of the right of said property, of which time and place the claimant shall also have notice.” The statute then proceeds to authorize a justice, before whom „a trial of the right of property shall be had, in case the property in dispute is found not to belong to the claimant, to enter a judgment against him for the costs of the proceeding, and issue execution thereon. See R. S. ch. 91. It is the duty of a constable, when a claim is interposed under this statute, to fix upon a time and place for the trial of the right of property, and give notice thereof to the justice, the claimant, and the plaintiff in execution. This is a matter exclusively for the constable, with the performance of which the justice has nothing to do. The trial is had in pursuance of an appointment made by the constable, and the parties are brought before the court by virtue of a notice given by him. When the constable informs the justice, that the property levied on has been claimed, and that he has named the time and place for the trial of the claimant’s right, the justice may lawfully proceed with the case. A state of case then arises which vests him with jurisdiction, and authorizes him to hear the cause, and enter the proper judgment on the finding of the jury. If thfi5 constable violates his duty, he may be held responsible for the consequences'by the party injured, but the magistrate, and those acting under his judgment, will be protected. A justice may lawfully enter judgment against a defendant who appears by a constable’s return to have been served with process, although, in point of fact, the return may be utterly untrue. It is the return of the officer, not the truth thereof, that confers jurisdiction on the justice. The officer may be sued for a false return, but the justice will be justified in his action in the case. So, in a proceeding under this statute, the justice is authorized to act on the report of the constable; and he is no more responsible for the conduct of the constable, than in the case of a false return upon original process. In our opinion, the plea presented a good defence to the action on the part of the magistrate, and the court erred in sustaining the demurrer. The evidence did not justify the verdict. It was incumbent on the plaintiff to show title to the property sold under the execution. It did not follow because the corn was seized and sold under an execution against him, that it was his property. Such would probably be the presumption in an action against the officer making the levy and sale. But this suit is against other parties, and the acts of Summers are not evidence against them. A new trial should have been granted. The judgment must be reversed, and the cause remanded. Judgment reversed.