Alexander v. Eberhardt

Dryden, Judge, delivered the opinion of the court. This was a proceeding commenced before a justice of the peace (under § 28, Art. YIIL, R. C. 1855, p. 968) against Eberhardt, and his securities, one of the constables of St. Louis township, in St. Louis county, for failing to make return of a fieri facias, on the return day thereof, placed in the hands of one his deputies to be executed in favor of Alexander against one Bates. The case comes here by appeal from the Law Commissioner’s Court, where there was a verdict and judgment for the defendants below. Before proceeding to consider the question arising in this case, it is proper to premise that St. Louis township, which comprises the city of St. Louis and a part of the county beyond the city limits, is by law divided into districts, each ward in the city constituting one district, and that part of the township without the city another; and, for the greater convenience of the public needing the services of a justice of the peace, the law further provides that each of said districts shall be entitled to two justices, who are required “to keep their offices and hold their courts within the ward or district” for which they are respectively chosen. These justices although chosen by and for a subdivision of the township are nevertheless, to all intents and purposes, township officers, having the same jurisdiction throughout their township as have officers of their class in all other townships in the State. (§ 2, 3, 4 & 5, ch. 89, R. C. 1855, p. 920.) The Legislature has also districted the township with reference to the election and location of constables, giving one constable to every two wards in the city and two to that part of the township beyond the city, and requiring them each to reside in the district for which they are respectively elected ; they too, like the justices of the peace, are township officers, having like powers and jurisdiction throughout the township as are possessed by constables in all other townships. (§1, ch. 29, R. C. 1855, p. 345.) The evidence in the case tended to show that Eberhardt was a constable for that part of the township outside the city [479] limits, and that Charles H. Smith was his deputy, duly appointed as such; that Alexander, on or about the 22d of March, 1861, recovered judgment against Bates for fifty dollars and costs before Alpheus Smith, a justice of the peace, who kept his office and held his court in the fourth ward of the city; that on the day following said justice issued an execution on said judgment returnable in sixty days, and of his own motion and without the knowledge of the plaintiff delivered the same to the said deputy of said Eberhardt to be executed. It further appears that there was another constable for the township residing in the district comprising the fourth ward at the time said execution was issued. The evidence further tended to show that return of the execution was not made in sixty days, or at any time. Among other instructions given by the court below at the instance of defendants, and objected to by the plaintiff, is the following: “The jury are instructed,that if they find that the defendant Eberhardt was at the time of the issuing of the execution in the complaint mentioned a constable of the township of St. Louis outside of the city limits and not of the fourth ward of the city of St. Louis, then they should find for the defendants, unless they further find from the evidence that the plaintiff in said execution selected the defendant Eber-hardt as the constable to whom said execution should be delivered, and the burden of proof to establish such selection is on the plaintiff.” . The instruction was framed with reference to an act of the General Assembly approved March 4,1861, in force from and after its passage (Acts of 1861, p.-), which provides as follows: “The justices of the peace in the city of St. Louis shall issue their processes in civil cases and deliver the same to the constable of the ward in which their offices are located, and said process shall be executed by the constable of said ward; provided, however, that nothing in this act shall be so construed as to deprive the plaintiff of the right to select [480] the constable to whom his process shall be issued' and delivered, and, when any plaintiff shall thus select, the justice shall issue and deliver accordingly; and any former law authorizing justices of the city to issue and deliver process in civil cases to constables of any township of St. Louis county is hereby repealed.” The court gave the instruction complained of under a misapprehension of the object and effect of the act of the Legislate just quoted. The design of the law was to substitute, in place of the caprice or mere arbitrary will of the justice of the peace,, a definite rule by which the labors, and consequently the emoluments, of the office of constable should be parcelled out. among the several constables of the township. As the law stood before, it was in the power of the justices, from favoritism or other consideration, to give a monopoly of the profits of the office to one constable, to the ruin of the rest, and there was no redress. To prevent such results in the interest and for the benefit of the constable, and his only, the act was passed making it the duty of the justice to deliver his process to the constable required to reside in the district embraced in his ward, except where otherwise direct? ed by the plaintiff in the process. It was not the purpose of the act, not did it have the effect, to reduce township constables to the grade of ward- or district officers. All remained township officers, with powers and jurisdiction coextensive with the township, after, as before, the passage of the act. Nor did it have the effect to change the form of the civil process; all such processes properly continued, as before, to be addressed “■ To any Constable of St. Louis Township.” There is nothing in the act to countenance the idea that the Legislature meant that a wrong delivery of process should have the effect of rendering such process void. The only effect it would have would be, possibly, to expose the justice to an action for damages at the suit of the injured constable, for the loss of the fees which he would have been entitled to had the justice performed his duty as required by the law. The enforcement of an execution by an interdicted, constable [481] would not subject the plaintiff to an action by the defendant, nor can there be any doubt that payment to such constable would work the extinguishment of the judgment. The statute is, in my view, purely directory; and a disregard of its requirements by the justice is not necessarily fatal to the process, as supposed by the court below. But if it was conceded that, in the case at bar, the execution was erroneous by reason of its improper delivery, still the instruction ought not to have been given. The fault was not apparent on the face of the paper. No note or memorandum was required to be endorsed on the execution by the justice to show compliance with the statutory requirement, and none was endorsed. Nothing appearing on the face of the process to invalidate it, the defendant, according to the well settled law, would have been justified in the execution of it, (2 Strange, 710 ; Savacoal v. Boughton, 5 Wend. 170 ; Milburn v. Gilman, 11 Mo.. 64,) and, if justified, then he was bound to execute it, and would not be heard to question its validity. (Ladbroke v. Cutchell, 2 T. R. 653 ; 5 Wend. 170 ; 11 Mo. 64.) Let the judgment be reversed and the cause remanded; Judge Bay concurring.