Hart v. Robinett, 5 Mo. 11

Opinion of the court delivered by Edwards, Judge. This was a proceeding by Robinett against Hart, a constable, for not returning an execution as commanded. Robinett obtained judgment before a justice of the peace against Burch and Pendleton, and upon that judgment execution was issued, returnable within thirty days, and placed in the hands of Titus, deputy constable under Hart.

The execution was not Teturned within thirty days, according to the command thereof; and upon the demand of Robinett, the justice issued a summons, directed to John Martin, requiring Hart to show cause why an execution should not issue against him for the amount of the execution in favor of Robinett against Burch and Pen-dleton. On the return day of the summons, the parties appeared, and the justice rendered judgment against Hart, from which Hart appealed to the c;rcuit court. On the trial in the circuit court, both parties appeared, and the cause was submitted to a jury, verdict and judgment for Robinett.

The defendant moved for a new trial and in arrest of judgment. On the trial the plaintiff gave oral testimony that Hart was constable of the township, and that Titus was deputy under him, He also gave oral testimony to prove the contents of the execution, with-' out showing that he had given the defendant notice to produce it, and without accounting for its non-production.

There are three statutes, the constable law, the execution law, and the law regulating justices’ courts, pro-vidmg different remedies, and imposing different penalties on officers delinquent in returning executions. appellant insists, that the summons in this case is insufficient, because it does not show under which of the utes the plaintiff proceeds, nor for what penalty, whether for any penalty at all. Either of these statutes may be put in force without bringing its provisions in conflict with the other.

They are not then repugnant, As they provide different remedies, and impose different penalties, the party injured has the liberty of choosing the nature of his remedy; and the nature of the remedy adopted, will show the penalty sought. of in the appellate court.

This summons t^any suitable6<^ person, inpursu-anee of the visions of the Rev. and must bo dorsed according-(forsernent be* wanting, but the def. appears and d°es not t0 the defect hsour-cd, and cannot be taken advantage sXnTs°oV^ dispensed with in the case of justices thbles &cC<an<Ht is sufficient to ac-prove that they ted m these char-producing their appointments. The rule requiring the best evidence which the It is further insisted by the appellant, that the sum-was not directed to, or executed by, any officer or ’person authorized to execute the same.

The summons was directed to John Martin; the appellant insists that it should have been directed to the constable. This could not have been the intention of the law-making power, statute requires the summons tobe issued against the consta.ble; and if issued against him,, of course it ought to be dnected to him. It would be as unwise to entrust a delinquent officer with process against himself, as would be to make a man judge of his own cause. In regard to the execution of the writ, the language of the statute is explicit enough.

It provides that “every jus-tjce issujng any process authorized by this act, upon being satisfied that such process will not be executed for want of an officer ,to be had in time to execute the same, may emp0Wer any suitable person, not a party to the suit, to execute the same, by an endorsement on such process to the following effect: ‘At the request and risk of the plaintiff, I authorize-to execute and return this writ ” — R. C. 352, s. 20. If the justice be satisfied that no officer can be had in time to execute the writ, he shall empower some suitable person to do it.

The case before us is a still stronger one. Here no officer could be had at all, and of course, none in time. But the justice cannot empower a person to serve process without the endorsement required. In this case the endorsement was wanting, and the defendant might have taken advantage of this defect in the process, by moving to quash or dismiss the proceedings, had he done so in time. He made no objection, however, but appeared and went to trial, as if the person serving the process had been properly empowered to do so. It is now too late to object.

Oral testimony was given to prove that Hart was constable, and that Titus was deputy under him. To this the appellant objected. The rule requiring the best evi-donee t0 I16 produced is dispensed with in some particular cases. In case of all peace officers, justices of the peace, constables and others, it is sufficient to prove that they acted those characters without producing their appointments.

The appellant further insists, that the court erred in admitting oral testimony of the contents of the execution to be given m evidence, as no notice had been given to produce it, and as its absence was not accounted for. The rule which requires that a party shall have previous notice to produce a written instrument in his possession, before the contents can be proved in evidence in the cause, will not apply in cases where, from the nature of the proceedings, the defendant has notice that the plaintiff means to charge him with the possession the instrument.

In such cases, it is unnecessary to give further notice than the action itself supplies. If, from the nature of the proceedings, the party must know that the contents of a written instrument in his possession will come in question, it is unnecessary to give any notice for its production—1 Phil.

Ev. 391, and note. ”aet’urre0£f proceedings in a caseithe defend-the plaintiff means to charge him with the pos-Kent? “fc£ ther notice to pro-¿uce is necessary, edinffSof this kind against delinquent offi-must beVy the and it is eiror to submit caset0 aiUf/- in the trial below, the court permitted the cause to go to a jury. In this there was error. This proceeding was by summons, requiring the party to appear, and cause why an execution should not issue against him. The cause was matter to be shown to the court, and not mattertobe found by a jury.

The'proceeding was in the nature of a proceeding for a contempt, and was ter to be inquired into and adjudicated by the court. The other Judges concurring herein, the judgment of the circuit court is reversed and the cause remanded.