Abbott v. Norman

HART, J., (after stating the facts). The court erred in reading section 678 of Kirby’s Digest to the jury and in instructing it that the right of the plaintiff to recover in the action depended upon whether or not the jury should find from a preponderance of the evidence that the bond provided for by section 678 of Kirby’s Digest had been given by Norman. It was shown by the two justices of peace of Missouri township that Norman was elected as constable of said township at the general election held in September, 1914. He told them that he had been sworn in as such constable. ,At any rate he entered into possession of the office, and assumed to, and did discharge the duties of the office. He was recognized as constable of the township by the public generally. His term of office was for two years. He was, therefore, at least, a de facto officer at the time the writ of attachment was placed in his hands for execution in November, 1916. Youngblood v. Cunningham, 38 Ark. 571; Pierce v. Edington, Treasurer, 38 Ark. 150, and Carter v. State, 43 Ark. 132. The failure to give the bond prescribed by section 678 of Kirby’s Digest did not prevent him from becoming an officer- de facto. Constantineau on the De Facto Doctrine, sec. 138, and Town of Weston v. C. W. Sprague, 54 Vt. 395. Under these circumstances Norman could not say he was not a legal constable and he was liable to the plaintiff for the failure to discharge the duties of his office. (2) It is claimed by counsel for the plaintiff that under the facts of this case the defendant was liable at common law for a failure to levy the attachment and was also liable for the penalty under subdivision 6 of section 4487 of Kirby’s Digest for failing to execute the attachment. It is true that section 4487 of Kirby’s Digest does not take away the common law right of the plaintiff to sue the defendant for failing to levy the attachment but the plaintiff could not pursue both of these remedies. The court properly required him to electt which remedy he would pursue. For the error in instructing the jury as indicated in the opinion the judgment must be reversed and the cause remanded for a new trial.