16-19-302. Proceedings against constables upon default.

16-19-302. Proceedings against constables upon default. (a) A justice of the peace shall, upon the demand of the party injured, or his agent, issue a summons against a constable to whom any execution has been delivered, or who has received any money upon any judgment of the justice, whether with or without execution: (1) If the constable fails to make return of the execution according to the command thereof; (2) If he makes a false return; (3) If he fails to have any money collected by him on execution before the justice on the return day thereof, ready to be paid over to the party entitled thereto, or the receipt of such person therefor; or (4) If he fails to pay over on demand to the person entitled thereto, or his agent, any money received by him in payment of any judgment. (b) The summons shall require the constable to appear before the justice at a place and time to be specified therein, not exceeding ten (10) days, and show cause why an execution should not be issued against him for the amount due upon the execution placed in his hands, or for the amount received by him upon the judgment, according to the nature of the case. The summons shall be served at least four (4) days before the return day thereof and may in other respects be executed in the same manner as an original summons. (c) If the constable fails to appear, or if he appears but fails to show good cause in reply to the matters alleged against him, the justice shall render judgment against him for the amount due on the execution, or for the amount received by him without execution, according to the nature of the case, together with interest thereon, at the rate of one hundred percent (100%) per annum, from the time the execution ought to have been returned, and from the time the money ought to have been had before the justice ready to be paid over to the parties entitled thereto, or from the time the money was received on the judgment without execution, or was demanded by the party or his agent. (d) Any process issued against any constable shall be served and executed by a special deputy, who shall be appointed by the justice for that purpose and who shall have the same power to execute and return such process as a constable, and whose return shall be sworn to. (e) Upon a judgment against a constable pursuant to this section, there shall be no stay of execution, but an appeal may be had as in other cases and with like effect. (f) The party injured may proceed against the constable as provided in this section or may institute a suit against him on his official bond. When proceeding on the constable's official bond, the injured party shall be entitled to the same recovery as upon a summons against the constable.