State ex rel. Kinnison v. Lockwood

Dewey, J.

This was an action of debt against a justice of the peace and his surety on his official bond, commenced originally before a justice of the peace, and taken by appeal to the Circuit Court. The cause of action states that certain persons had obtained judgments against Einnison, the relator, before justice Lockwood, one of the defendants; that executions had issued upon them and been placed in the hands of one Swope, a constable, for collection; that Swope collected the money due by the executions, and paid it over to justice Lockwood ; that, afterwards, Lockwood issued other executions upon the same judgments, and placed them in the hands of one Leiois, a constable, who levied them upon a horse belonging to Einnison, which he sold under the last-named executions. The record shows that the defendants pleaded before the justice, but it does not show what the defence was.

There was a jury trial in the Circuit Court; verdict and judgment for the defendants.

On the trial the plaintiff offered Swope, the constable, as a witness; the defendants objected to his competency, contending that the statement in the cause of action proved him to be interested, and his testimony was rejected. The Circuit Court erred in this decision. If Swope had collected the money on the first executions and had not paid it over, he was liable to the plaintiffs in the executions, but not to Einnison or Lockwood. That liability could not be affected by the result of this suit; it remains the same whether Einnison recovers of Lockwood and his surety or not. It is evident that Siuope could have no interested motive to fix a liability upon these defendants.

The plaintiff also offered Lewis, the constable, as a witness, but his testimony was objected to by the defendants and excluded. This was also error. He had no interest which could be subserved by the defeat of the defendants.

The plaintiff having proved the service of a subpcena duces tecum upon Lockwood, and having read the same to the Court as containing notice to produce his docket and certain execu *146 tions, offered to give parol evidence of their contents. The objected and the testimony was rejected. Admithng that a subpcena duces tecum may operate as such a notice to produce papers as will authorise secondary evidence of their contents, and admitting also that a justice’s docket, an¿ executjons 011 ffie jn fog office, are documents which may be removed — points on which we give no opinion, — the record does not sufficiently show the contents of the subpcena duces tecum in question,, to enable us to say whether it contained a legal notice to produce the papers or not. It. must be presumed, therefore, that the rejection of the parol testimony of the contents of these papers was correct.

R. A. Chandler and D. Mace, for the plaintiff. T. J. Evans, for the defendants.

Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.