CONSTABLE — ATTACHMENT—APPEALS.

[Franklin Circuit Court,

January Term, 1892.]

Shearer, Stewart and Shauck, JJ.

#### MONAHAN, CONSTABLE, ET AL. v. TRIUMPH ARTIFICIAL LIMB CO.

1. Constable not Liable for Money Paid to Plaintiff; Prior to Piling Appeal Bond.

Where money in the hands of a constable by virtue of an order of attachment, is paid by him to the plaintiff in attachment, pursuant to the order of the magistrate who issued the attachment, after judgment and before an undertaking for appeal has been given, no action will lie, upon the official bond of such constable, at the suit of the defendant in attachment, to recover the money so paid.

2. Petition Must Allege Illegal Payment, or Proceedings are Presumed to be Regular.

A petition in an action against the constable upon such bond which fails to allege the giving of such undertaking prior to such payment, or any want of legality relied upon in the payment, is fatally defective, as otherwise the proceedings will be presumed regular.

Error to the Court of Common Pleas of Franklin county.

The cause of action upon which the original suit was founded was the alleged breach of the official bond of the plaintiff in error, Monahan, as constable of Montgomery township, Franklin county.

*391The petition, after reciting the election and qualification of Monahan as such constable, alleges that on September 29, 1890, while said Monahan was duly acting as such officer, an •order of attachment was issued in an action then pending before a justice of the peace of said township between one E. D. Walker and The Triumph Artificial Limb Co., the defendant in error, directed to said Monahan as constable, in virtue whereof he levied upon certain moneys as the property of said company, and took the same into his possession.

That afterwards, on October 7, 1890, said company appealed said action to the court of common pleas, where such proceedings were had that, on November 29, 1890, said attache •ment was discharged, and said money ordered to be returned to said company.

That although due demand therefor was made, said Monahan refused to pay over said money or any part thereof as required by said order; and prays judgment for said sum, with interest, costs and penalty, according to the statute in that behalf.

Said Monahan, for separate answer, admits all the allegations of the petition, except said demand and refusal to pay over said moneys, which allegation he denies.

And he alleges that on October 3, 1890, “then having the twenty-two and 50-100 dollars in his possession, by order of Charles E. McDonald, the justice of the peace who issued said attachment, and under whose direction he was then acting, he paid the sum of seventeen and 50-100 dollars to said plaintiff in attachment, one E. D. Walker, retaining the sum of two and 50-100 dollars for his costs in said case, and paying over to said Charles E. McDonald, justice of the peace, two dollars and fifty cents, his costs in said suit”; and prays that plaintiff’s action be dismissed.

A general demurrer to said answer was sustained by the court of common pleas, and defendant not desiring to amend, judgment was given for the plaintiff; and this action is assigned as error.

SHEARER, J.

It appears from the answer that the money seized by the constable, was by order of the magistrate, paid over to the plaintiff in attachment, on October 3, 1890 — four days before the attachment debtor, defendant in error here, “appealed” said action.

There is no allegation in the pleadings as to when, if at all, the magistrate rendered judgment; but, we may presume in favor of the regularity of his proceedings, that he did so before the money was paid over by the constable as just stated.

We may also infer that the allegation of the petition, that on October 7,1890, the plaintiff “appealed said action,” means that he on that day, entered into an undertaking for appeal according to the statute.

If this be so, the question arises whether the constable was justified in paying •over the money, there being at the time of payment no stay of proceedings by appeal or otherwise.

Section 6585 Rev. Stat., relating to proceedings before justices of the peace •when a case is appealed, provides, among other things, that “all further proceedings before the justice of the peace shall cease and be stayed from the time of •entering into such undertaking.” So, that until such undertaking is given, execution may issue and be levied, and if money is made by levy thereon, or by the voluntary payment of the debtor, the officer receiving the same, may lawfully •pay it over to the party entitled thereto. Or if, as in this case, money is seized in attachment, the officer holding the same, may, if so ordered by the magistrate, lawfully pay it to the plaintiff in attachment, at any time after judgment and before an undertaking for appeal is entered into, or other steps taken, under the ■statute, for stay of proceedings.

The defendant in error might have prevented the summary payment of the money, either by giving an undertaking for appeal forthwith upon the rendition •of the judgment, or by entering into the restitution undertaking provided for in sec. 6494 Rev. Stat. Having done neither he cannot complain, for the reasons •already stated.

Had it been personal property other than, money, the defendant in error might safely have proceeded with deliberation; for, in such case, a sale would llave been necessary, which could not have been had before the time for appeal ■elapsed.

Assuming, as we are bound to do, that the proceedings in the action before the magistrate antecedent to the payment complained of were regular, and there *392being no allegation that at the time of such payment an undertaking for appeal had been given, it follows that the constable was warranted in paying over the money; and his answer states a valid defense. And for the same reason, the petition, failing to allege that such undertaking had been given when said money was paid over, is fatally defective; and as the demurrer searches the record, it should have been overruled as .to the answer and sustained as to the petition.

J. F. McFadden, for plaintiff in error.

A. H. Johnson, for defendant in error.

Judgment reversed, demurrer overruled as to the answer, and sustained as-to the petition, and cause remanded to the court of common pleas for further proceedings.