State ex rel. Carroll v. Devitt

Sherwood, P. J. Action on constable’s bond ; two counts in the petition, the first count based on an alleged trespass ; the second for an alleged false return. The court below at the close of plaintiff’s case gave an instruction in the nature of a demurrer to the evidence, whereupon a nonsuit, with an ineffectual endeavor to set the same aside, hence this appeal. These counts will be discussed in inverse order. [576] I. The return of the constable was prima facie true in this action against him charging that his return upon the notice was false, which notice was issued by Sheehan, the justice to whom the cause was transferred on affidavit made by relatrix, in order to change the venue from Byron, justice, befoi’e whom the action for possession was brought by Staed Bros. Even in his own favor the x-eturn of an officer is prima facie evidence. Crocker on Sheriffs, sec. 45; Burgert v. Borchert, 59 Mo. 80. Besides, the testimony of the relatrix virtually shows that she was duly served with the notice in question. No error was, therefore, committed in sustaining the demurrer to the evidence on this count. II. Now as to the count in trespass, Sheehan, the justice of the peace, undoubtedly had jux’isdiction over the subject-matter of the action, brought by Staed Bros., and the writ which he issued to the constable was undoubtedly fair on its face. This being the case, the writ constituted a valid protection to the officer. Murfree on Sheriffs, secs. 1127, 1128, 877, 926; Melcher v. Scruggs, 72 Mo. 406. III. But notwithstanding the writ of possession was fair and regular on its face, yet this does not and could not authorize the constable, or those acting under his orders, to do as Mrs. Lizzie Buda testified they did. do, to-wit, “handled the furniture very carelessly and roughly and bx’oke some of it.” No writ, however valid or regular on its face, will sanction anything of this sort. An officer who misuses property in such a way as stated becomes a trespasser ah initio, and his writ affords him no protection. Cooley on Torts [2 Ed.] 541. As to the count in trespass, therefore, the action of the . lower court was erroneous, as there was some evidence to sustain that count. Judgment reversed and caxxse remanded. All concur'.