State ex rel. Frisbie v. Hart

12 Ind. 424

• Court: Indiana Supreme Court
• Decided: June 9, 1859
• Status: Published

Opinion

Per Curiam.

This was an action against a constable and his sureties on his official bond: The bond is conditioned in the usual form for the discharge of the duties of the constable.

In the .complaint it is averred that the relator, on the 7th of August, 1840, recovered a judgment before Robert Stewart, a justice of the peace, against one Telford Ab-shire, for 92 dollars and costs, &c.; upon which one Jackson Abshire, on the 14th of the same month, became bail for the stay of execution; and that on the 13th of June, 1856, an execution was issued on said judgment, which reads thus:

^“’State of Indicma, Spencer county, ss.: To any constable of Ohio township, greeting: Whereas Alpha Frisbie recovered a judgment against Telford Abshire, before me, Robert Stewart, a justice of the peace, &c., for 92 dollars, with interest, &c., together with costs, &c., and said judgment was replevied on the 14th of August, 1840, you are hereby commanded that of the goods and chattels of the said Telford Abshire and Jackson Abshire in your county, 3jpu cause to be made the debt, interest, and costs, &c., by distress and sale thereof, returning the overplus, if any, &c. Given under my hand and seal this 13th of June, 1856. [Signed] Robert Steioart [seal], justice of the peace.”

H. G. Barkwell, for the appellant.

There are seven breaches, the effect of which are, that the constable failed to levy the execution, there being property to be found, &c., and that he failed to make return on the proper return day, &c.

The Court tried the issues, and found for the defendants. New trial refused and judgment.

The record shows that during the trial the plaintiff offered in evidence the above execution; but his offer was overruled, and he excepted.

The execution thus offered should have been admitted, because it is set out in the complaint and constitutes an essential part of that'pleading; and its sufficiency could only be questioned by demurrer. 2 It. S. p. 39, § 54. The writ is legal on its face, and, being part of the complaint, the reason why it was refused as evidence is not perceivable. The record does not profess to contain the evidence, and for aught that appears, the officer was bound to execute the writ in good faith and make due return thereon; but whether he was or was not thus bound, the relator had a right, in the first instance, to give it in evidence in support of his action.

The appellee having furnished no brief, we are not informed as to the ground upon which the evidence was rejected.

In view of the case as it stands before us, we think it should have been admitted.

The judgment is reversed with costs. Cause remanded, &c. ’ ^