16 Mo.App. 531 (Mo.App. 1885), Eisenhardt v. Cabanne

Citation:16 Mo.App. 531
Opinion Judge:ROMBAUER, J.
Party Name:D. F. EISENHARDT, Respondent, v. S. C. CABANNE, Appellant.
Attorney:R. W. GOODE and A. R. TAYLOR, for the appellant. L. S. METCALFE, JR., G. M. STEWART, and G. A. FINKELNBURG, for the respondent.
Case Date:February 24, 1885
Court:Court of Appeals of Missouri
 
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Page 531

16 Mo.App. 531 (Mo.App. 1885)

D. F. EISENHARDT, Respondent,

v.

S. C. CABANNE, Appellant.

Court of Appeals of Missouri, St. Louis.

February 24, 1885

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

R. W. GOODE and A. R. TAYLOR, for the appellant.

L. S. METCALFE, JR., G. M. STEWART, and G. A. FINKELNBURG, for the respondent.

OPINION

ROMBAUER, J.

This cause is in most of its features the same as the cause of Stewart v. Cabanne (16 Mo.App. 517). The attachment was levied at the same time, against the same defendant and the testimony adduced by the plaintiff in the trial court in support thereof, is almost identical with that in the former case.

In some of its features, however, this cause is different from the former, and gives rise to questions which require an examination of points raised, beyond those raised and decided in the former case.

The plaintiff's affidavit here stated five grounds of attachment based respectively on the seventh, eight, ninth, tenth, and fourteenth clauses of section 398, Revised Statutes, relating to the intended and executed fraudulent disposition and conveyance of property and to the fact that the debt sued for was fraudulently contracted. The court among other things, instructed the jury as follows:--

" The court instructs the jury that if they find for defendant as to all the grounds of attachment assigned in plaintiff's affidavit, their verdict must be: We, the jury, find for the defendant on the plea in abatement in this cause. If they find for the plaintiff as to all said grounds, they will in their verdict say: We, the jury, find for plaintiff as to all said grounds alleged in plaintiff's affidavit for the attachment herein, and if they find for plaintiff as to some, but not all of said grounds, they will specify the grounds upon which they find for plaintiff, and then state that they find for defendant as to the other grounds assigned in said affidavit."

And the jury returned the following verdict: " We, the jury, find for plaintiff as to all the grounds alleged in plaintiff's affidavit for the attachment herein."

Judgment was thereupon rendered for the plaintiff. While it may be a novel practice in this state, to take the finding of the jury in this manner, it is a practice not only fully warranted by precedent elsewhere, but also commendable, because...

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