State ex rel. Dillard v. Johnson

RIGGS, J.

This is an action on the bond of A. P. Johnson, constable of Salt River township, in Audrain county. The substance of the action as stated in the petition and shown by the evidence is, that the relator instituted an attachment suit before a justice of the peace upon a demand of $177 against the firm of Elliott & McNama; that certain property was attempted to be levied upon under the writ of attachment and was afterward sold by Johnson to whom the writ was delivered; that the attachment was sustained and final judgment was rendered in the action; that subsequently Elliott & McNama made an assignment for the benefit of their creditors; that one Turner, their assignee, enjoined the payment of the proceeds of the sale of thé attached property to the relator upon the ground that the return of Johnson on the attachment writ was insufficient to create a valid lien on the goods; that the circuit cpurt sustained Turner in his action and ordered Johnson to pay the money to him, whereby the relator lost his debt.

In addition to a general denial, the answér of the defendants was to the effect that the return on the writ of attachment was written by the attorney of the relator in the attachment suit, and that by reason whereof the relator is estopped to claim damages caused by the insufficiency of the return.

The jury returned a verdict for the plaintiffs, upon which a judgment was entered. The defendants have appealed.

The defendants objected to the introduction of any evidence upon tbe ground that the petition failed to state a cause of action, in that it failed, first, to aver tbe penalty of tbe bond, and, second, that the judgment of the justice in the attachment suit was not sufficiently pleaded.

The first objection is not supported by the record. The petition contains this averment, to wit: “Whereby defendants became liable to pay plaintiff to the use of said relator the sum of $2,000; wherefore plaintiff prays judgment against defendants in the sum of $2,000, the penalty of said bond, and that execution issue against the defendants for the sum of $177.00, the damages aforesaid, and for costs.” We think that this is sufficient.

The second objection is likewise overruled.

At common law it is necessary in pleading the rendition of a judgment of an inferior tribunal or that of a court of general jurisdiction in the exercise of a. special jurisdiction, to aver all jurisdictional facts. Under the statute it is only necessary to state that such a judgment was duly rendered. (R. S. 1889, sec. 2079.) This averment is not formally made in the petition here, but the fact may be fairly inferred from the statements therein that the judgment of the justice was duly and regularly obtained. An objection to the introduction of evidence on account of a defective pleading will be sustained only when there is an entire omission of material facts. Young v. Shickle, 103 Mo. 324; Weaver v. Harlan, 48 Mo. App. 319; Dillon v. Hunt, 82 Mo. 150; Eans v. Bank, 79 Mo. 182; Lycett v. Wolff, 45 Mo. App. 489.

The plaintiff read in evidence the judgment entry in the case of Turner, Assignee, etc., v. Johnson, above mentioned. The specific objection to this piece of evidence was that the judgment entry showed that Johnson had taken an appeal and that there was nothing to show that there had been a final disposition of the cause. This is a mistake, for the record shows that the judgment had been satisfied.

It is urged that the evidence is insufficient to support the judgment in this case for the reason that the judgment entry above referred to fails to show that the litigation involved the proceeds of the sale of the attached property, or that Johnson had been enjoined from paying’ the money to relator. The record is imperfect in the respects mentioned. The judgment entry only was read in evidence, which merely shows a recovery in favor of Turner. It seems, however, to have been conceded at the trial that the Turner litigation involved the proceeds of the attached property and that Turner prevailed in the action. In the instructions asked by the defendants the fact that the relator had lost the benefits of his attachment by reason of a fatal defect in the return on the writ, seems to have been admitted, for the defendants placed their non-liability on the sole ground that the attorney of the relator had written the return. Under these circumstances we must overrule the assignment.

The pivotal question in the case, and the one upon which the defendants chiefly rely, is, that the attorney of the relator wrote the return on the writ of attachment and that therefore the relator is estopped to assert that the return was insufficient. or to claim damages by reason of its insufficiency. The instructions asked by the defendants and which the court refused, presented this theory of the case. It appears from the evidence of the defendants that after Johnson had attempted to serve the writ he asked the relator’s attorney to write the return on the writ, which he did. The return failed to state that Johnson had taken the property into his possession. This assignment involves a discussion of the powers and duties of relator’s attorney. It is insisted by counsel for defendants that in preparing the return the attorney acted as the agent of the relator. We have examined the various authorities cited in support of this. We find that the plaintiff’s attorney in an attachment suit may procure an order for the sale of the property (Williamson v. Bosbyshell, 14 Mo. App. 534); that he may point out the property upon which the levy is to be made (Vaughn v. Fisher, 32 Mo. App. loc. cit. 37; Granberry v. Crosby, 7 Heisk. (Tenn.) 597), and that he may direct the officer to hold up the execution (Robinson v. Coker, 11 Ala. 466; Kennedy v. Smith, 7 Yerg. (Tenn.) 472, and Robinson v. Harrison, 7 Humph. (Tenn.) 189). As to the matters in judgment in the cases cited we can readily understand the reasons for the rulings of the court. In each case the attorney merely exercised a right which his client possessed. In the case at bar the relator could have nothing to say as to the manner of making the levy; nor had he the right to direct or dictate to the constable as to the form of his return, therefore on principle he can not be prejudiced by the mistake of the attorney in writing the return. As to this act the attorney must be treated as the agent or scrivener of the constable.

Finding no reversible error in the record, we will affirm the judgment. It is so ordered.