State ex rel. Castleman v. Cunningham

79 S.W. 1017, 106 Mo. App. 58, 1904 Mo. App. LEXIS 321

Opinion

ELLISON, J.

This is an action on a constable’s official bond. There was a demurrer to the evidence for relator at the close of his case, which the trial court sustained and he appealed.

The cause of action alleged is that the relator, as plaintiff in an attachment suit begun before a justice of the peace, sued out a writ of attachment which was placed in the defendant constable’s hands and by him levied upon a lot of corn standing in the field; that relator, as plaintiff in such action, had judgment in the attachment suit, but that the defendant, as constable, had wrongfully released the attached property from the levy, to the relator’s damage, etc.

At the trial the judgment upon which the attachment depended and the entire record, failed to show that the justice of the peace before whom the action was begun had jurisdiction thereof. The failure consisted in an omission to show that the property was in the township where the defendant resided, or in some adjoining township; or in the township of the justice or in an adjoining township. The justice, by force of the statute (Revised Statutes 1899, sec. 3840), only has jurisdiction where these facts, or one of them, which are omitted from the record exist. Bank v. Doak, 75 Mo. App. 332; Corrigan v. Morris, 43 Mo. App. 456; Cunningham v. Railway, 61 Mo. 33; Fletcher v. Keyte, 66 Mo. 285; Ewing v. Donnelly, 20 Mo. App. 6; Wise v. Loring, 54 Mo. App. 264; Zimmerman v. Snowden, 88 Mo. 218; Daugherty v. Brown, 91 Mo. 26. Nor can these jurisdictional facts be supplied by parol, for they must affirmatively appear somewhere in the record. State v. Metzger, 26 Mo. 65.

In order for plaintiff to be injured by the release of a levy he must then have had, or must have after-’ wards obtained, a judgment; for a valid judgment is necessary to any effective results from an attachment. Lesem v. Neal, 53 Mo. 412, 420.

The judgment must be affirmed.

All concur.