Mense v. Osbern

• Decision Date: 31 May 1839
• Citation: 5 Mo. 544
• Court: Missouri Supreme Court
• Parties: MENSE v. OSBERN.

5 Mo. 544

MENSE

v.OSBERN.

Supreme Court of Missouri.

May Term, 1839.

ERROR TO THE CIRCUIT COURT OF FRANKLIN COUNTY.

FRISSELL, for Plaintiff in Error. The plaintiff in error will rely upon the following points and authorities: 1. That the plaintiff below should have been compelled to go to trial on the issue joined upon the truth of the affidavit on which the attachment issued, or the suit should have been dismissed, none of the garnishees having answered, and having property of Mense's in their hands. Acts of 1836-7, p. 9, § 5; Stat. of Mo. p. 79, § 22. 2. That the statement of the record, that “it appearing to the court that the garnishees had nothing in their hands,” should be rejected. 1. Because the record itself contradicts the statement. 2. Because the court could not judicially know that to be the fact without the answers of all the garnishees, the law requiring the garnishees to answer in writing at the return term. Stat. of Mo. p. 79, § 22. 3. Unless the drawer of a bill of exchange have notice of the non-payment of the bill at maturity by the next post, or in some short but reasonable time, the drawer is not liable to pay the bill, he having funds in the hands of the acceptor. 4. If the drawer chose to render himself liable to pay the debt by a subsequent promise, he has a right to attach such conditions of time, place and manner of payment as he sees fit, and the payee cannot recover unless he shows that the conditions prescribed by the drawer, upon his promise to pay, have been complied with. Chitty on Bills, 303 to 310, note on p. 305; Chalfield v. Paxton, 308, note; Goodall v. Dolby; Bush v. Bernard, 8 Johns. 407; Scouton v. Esland, 7 Johns. 36. 5. That the declaration is bad in not setting out the conditions prescribed by the drawer upon his promise to pay, or that the event had happened by which the liability of the drawer had become complete. Wait v. Morris, 6 Wend. 394, a note of which case is found in 7 Johns. R. 36; 7 East, 231, Lundie v. Robinson.

COLE, for Defendant in Error. 1. The judgment of the Circuit Court is correct in principle, if the bill of exchange be considered the foundation of the action. 2 Phil. Ev. 33; 2 Stark. Ev. 254; Pratte v. Honey, 1 Mo. R. 35; Mo. Laws, p. 97, § 1. 2. The judgment is right, if the plaintiff be compelled to resort to the original consideration. 2 Stark. Ev. 302; 2 Phil. Ev. 39, 16, 38; 2 Stark. Ev. 272, 16, 306; 6 T. R. 52; 7 T. R. 64. 3. The Circuit Court committed no error in dissolving the attachment upon the motion of the plaintiff. Mo. Laws, 76, § 3; act of Feb. 6, 1837, pamphlet, p. 8; Bellissime v. McCoy, 1 Mo. R. 318, 16, 657; 3 Mo. R. 410. 4. The judgment against the garnishee may be irregular, but it is not before the court; it is disconnected with, and independent of, the judgment of Osbern against Mense. 5. The want of a similiter to the plea of non-assumpsit, is not error; it is cured by the verdict. Mo. Laws, p. 469, §§ 7, 8; 1 Chitty's Plead. 571; and may be supplied by the Supreme Court. Mo. Laws, 469, § 8.

TOMPKINS. J.

Osbern sued Mense in the Circuit Court, where he had a judgment; and Mense brings the cause by writ of error into this court, to reverse that judgment. Osbern filed an affidavit and obtained an attachment against the goods, &c., of Mense. Mense filed a plea in the nature of a plea in abatement putting in issue the truth of the affidavit upon which the attachment was sued out. The Circuit Court, on motion of the plaintiff, dissolved the attachment and discharged some persons who had been summoned as garnishees. The defendant excepted to the opinion of the court dissolving the attachment. The court then proceeded to try the cause on the plea of a non-assumpsit, which had been filed by the defendant, and as above mentioned, gave the plaintiff, Osbern, a judgment. The act of the 6th February, 1837, suplementary to an act entitled “An act to provide for the collection of debts by attachment,” (page 9), gives to the defendant the right to put in issue the truth of the affidavit, upon which the attachment was sued out, and provides that if the issue of fact be found for the plaintiff, the cause shall then proceed as in other cases of attachment; but if the said issue be found for the defendant, the suit shall be dismissed at the cost of the plaintiff, and the said plaintiff shall be liable upon his bond, as in other cases by this act.

When the Legislature gave this extraordinary remedy by attachment to creditors, it seems they intended to provide a remedy for the defendant in case the plaintiff should rashly make an affidavit unfounded in fact. This provision in favor of ...