State ex rel. Ostman v. Meyer

REYNOLDS. P. J. (after stating the facts). — We are unable to find any law, statutory or common, that imposes upon a constable the duty of making affidavits against parties who have resisted the service of process. In a case of resistance of service of process, it is within the power of the constable to arrest the party in some cases, and if he made that arrest maliciously and without probable cause but under color of his office as constable, he and his sureties might be responsible on his official bond. But that is not this case. The constable, so far as appears by the amended petition in the case, while a constable and described as constable, but undoubtedly in his individual capacity as Albert Meyer, went before a justice of the peace and swore to the information or complaint upon which the warrant issued and the plaintiff, relator, was arrested. While it is averred in the petition that he was constable at the time that he did this, and he is described as constable, it is not averred in the petition that he made the affidavit in his official'capacity, and we cannot conceive of his doing so. Even stating in the affidavit that he was constable, would add no force to the affidavit. It is averred that he made the affidavit under color of his office without justifiable cause or excuse. Whether the substitution of the word “justifiable,” for the very essential word of “probable” is sufficient, is doubtful, and while the point is made by counsel for defendants that it does not appear that Meyer made the affidavit in his official capacity as constable, and while criticism is made of the word “probable” cause and the substitution therefor of the words “without justifiable cause or excuse,” we do not base our decision on any of these propositions. We place it upon the broad proposition, that it is no part of the duty of a constable, for which his bondsmen are in any way liable, to make affidavits, either for the arrest of a party or for any other purpose. We hold that the demurrer was well taken and properly sustained. The very learned counsel for appellant has [512] submittéd an elaborate and able brief on tbe right to recover punitive damages and has cited many cases that he claims to be in point as bringing his 'action within their rule. It is not necessary in this case to pass on this question. We have examined the cases cited by counsel and find no case that in our1 judgment sustains counsel’s contention, that a constable and his sureties are liable for his action in making an affidavit —however maliciously made, on which an arrest has been made. The judgment of the circuit court of St. Charles county in sustaining the demurrer to the amended petition and in rendering judgment thereon for defendants is affirmed. All concur.