Donovan v. Gibbs
| Citation | 187 S.W. 46,268 Mo. 279 |
| Parties | WALTER DONOVAN, Appellant, v. JAMES H. GIBBS |
| Decision Date | 02 June 1916 |
| Court | Missouri Supreme Court |
Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
G. C Dalton for appellant.
(1) Under Sec. 2298, R. S. 1909, just as soon as the defendant entered his voluntary appearance and filed his answer to the merits, the writ of attachment was ipso facto dissolved; the declaration of law requested by the plaintiff should have been given by the court. It defines the phrase "as of course" and gives it almost the same meaning as the phrase "ipso facto." The definition of this phrase is the pivotal question in the case at bar. "The phrase 'of course' is defined as follows: That which may be done in the course of legal proceedings without making an application to the court." -- Bouvier's Law Dictionary. See, Stoddard v. Treadwell, 29 Cal. 281. The meaning of the statute is clear. It is expressly stated in this statute that if plaintiff, without giving bond brings his action, in attachment, against a non-resident defendant, entering his appearance and filing his answer such attachment shall be dissolved. (2) The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. This intention must be the intention expressed in the statute. 36 Cyc. 1106 (2), 1107; Thornley v. United States, 113 U.S. 310; Gist v. Construction Co., 224 Mo. 369; Diedrick v. Rose, 228 Ill. 610. (3) A plaintiff could not sue a non-resident in attachment, without giving bond, under Sec. 370, R. S. 1899. This section was so amended by Laws of 1907, p. 69, as to enable plaintiff to sue a non-resident, in attachment, without bond; and this proviso was added by this amendment. This provision is the last expression of the legislative will. It is a well settled principle of law that the last expression of the legislative will is the law. In case of conflicting provisions in the same statute, the last enacted prevails. 36 Cyc. 1130, 1151. A proviso is a clause engrafted on a preceding enactment for the purpose of restraining or modifying the enacting clause, or of excepting something from its operation which otherwise would have been within it. 36 Cyc. 1162; Wayman v. Southard, 10 Wheat. (U.S.) 130; Patterson v. Winn, 24 U.S. 380; DeGraff v. Went, 164 Ill. 485; State ex rel. v. St. Louis, 174 Mo. 125.
W. P. Elmer for respondent.
(1) The term "as of course" means as a matter of right, which needs no investigation by the court as to the truth of it. 6 Words and Phrases, p. 4914. (2) Sec. 2302, R. S. 1909, provides that in certain cases the court may order the attachment plaintiff to execute a new attachment bond. Section 2303 provides that if the plaintiff fails to comply with the order, the suit shall be dismissed at his cost. In construing these two sections, this court held that a proper notice and motion and order were necessary to dismiss the suit. Jasper County v. Chenault, 38 Mo. 357; Englehart Co. v. Burrell, 66 Mo.App. 117; State ex rel. v. McKeon, 25 Mo.App. 667. (3) Section 2341 provides how attachments shall be dissolved. This section was not amended in 1907 to show the legislative intent of the amendment to section 2298, but the method of the dissolution as pointed out in section 2341 was applicable to attachments without bond, as provided in section 2298 where the State or the county was a party. An order of court is necessary to dissolve an attachment for the causes enumerated in section 2341 and when the defendant complies with the requirements of section 2341 the attachment should be dissolved as a matter of course. The only difference between the requirements of section 2341 and section 2298 would be the sufficiency of the affidavit and bond, which are to be approved by the court, and when they are approved the defendant has as much right to have the attachment dissolved as the defendant under section 2298 without bond would have had on entering his appearance and filing his answer to the merits. (4) Section 2342 provides that when an attachment shall be dissolved, all proceedings touching the property and effects attached shall be vacated. This section certainly relates to a dissolution as provided in section 2298, although enacted prior to the amended section. This section certainly contemplates and presupposes that some action would be taken by the court ordering and directing that the attachment be dissolved. Such a construction as is contended for by the appellant on section 2298 would make the attaching officer the absolute judge as to whether he should hold or release attached property.
This is a suit under section 2535, Revised Statutes 1909, to adjudge and quiet title to lot two of the northwest quarter and the north half of lot two of the southwest quarter of section 31 township 35 north, of range 5 west, in Dent County. The Dent Circuit Court rendered judgment for defendant, and this appeal followed. B. P. Vickery is the agreed common source of title. Appellant claims through mesne conveyances from B. P. Vickery, having obtained a deed in September, 1909. Respondent claims title under deed from Stephens and Horsman, whose title depended upon the validity of a sale under judgment in a suit by attachment they began against B. P. Vickery November 5, 1908. The ground of attachment was Vickery's non-residence. No attachment bond was given. Service was had by publication. On April 21, 1909, Vickery, appearing solely to question the jurisdiction, filed a motion in the cause. On April 22, 1909, alias summons was served in Dent County on Vickery, who was temporarily there. The cause was continued and was heard at the next term of court. On November 29, 1909, Vickery filed a general denial by way of answer, no ruling having been had or asked on his plea to the jurisdiction, and no leave to file answer having been asked or given so far as the record shows. On November 30, 1909, the court rendered judgment in the attachment proceedings, reciting: "Now on this day this cause coming on to be heard, the judge of this court having previously heard the evidence of witnesses and the argument of counsel, and having taken the case under advisement" (italics ours) "finds the issues for the plaintiffs in the sum of two hundred dollars." Then follows an ordinary judgment by attachment declaring a lien upon the land attached in that suit and involved in this. Vickery called neither his plea nor his answer to the attention of the court in that case, nor did he move to dissolve or ask dissolution of the attachment or vacation of the attachment proceedings. Neither did he appeal from the attachment judgment. Sale was regularly made under that judgment, and Stephens and Horsman purchased the land and took possession. Subsequently, for full price, they sold to defendant, who took possession and thereafter expended nearly two thousand dollars in money and labor improving the land, erecting a dwelling, barns, fences, digging wells, clearing, making a pond, etc. When attached the land was subject to a deed of trust for five hundred dollars which Stephens and Horsman paid and which sum appellant does not offer to repay. April 19, 1909, some months after the attachment suit was begun and sometime after service by publication was had, B. P. Vickery and wife executed a deed, recorded April 23, 1909, purporting to convey the attached property to Wm. B. Vickery, who lived in the same town in Illinois with B. P. Vickery. May 3, 1909, Wm. B. Vickery and wife conveyed to Anna B. Vickery, also of the same town. September 8, 1909, Anna B. Vickery and husband B. P. Vickery, who had then removed to South Bend, Indiana, in consideration of one dollar, conveyed to appellant, also of South Bend. Appellant then...
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