53 Mo. 265 (Mo. 1873), Brackett v. Brackett

Citation:53 Mo. 265
Opinion Judge:WAGNER, Judge.
Party Name:SAMUEL J. BRACKETT, Appellant, v. JAMES L. BRACKETT, Respondent.
Attorney:McDonald & Houston, for Appellant. Snoddy & Bridges, for Respondent.
Court:Supreme Court of Missouri

Page 265

53 Mo. 265 (Mo. 1873)



JAMES L. BRACKETT, Respondent.

Supreme Court of Missouri.

July Term, 1873

          Appeal from Pettis Court of Common Pleas.

          McDonald & Houston, for Appellant.

         I. The filing of a plea in abatement was an entry of appearance in the cause, and authorized a general judgment, if either party resided in Pettis county. ( Evans vs. King, 7 Mo. 411.) And there being no evidence to the contrary, it will be presumed in favor of the judgment, that appellant did reside in Pettis county. Hence the rule laid down in Perry vs. Harper, (42 Mo. 131,) does not apply to this case.

         II. The objections to the judgment could have been corrected by appeal or writ of error, and the defendant, having failed to avail himself of this remedy, has now no remedy. (Marsh vs. Bast, 41 Mo. 493; Collins vs. Bannister, 48 Mo. 435; Finney vs. State, 9 Mo. 632.)

          Snoddy & Bridges, for Respondent.

         I. Under the statute, (W. S., 189-90, § 42,) upon the dissolution of the attachment, the suit stood as though originally instituted by summons alone. And respondent, as the summons showed, neither resided in Pettis county, nor was found in said county. Hence the court had no jurisdiction. ( Peery vs. Harper, 42 Mo. 131; Latimer vs. Union Pac. Railway, E. D., 43 Mo. 105.)

         II. The motion to quash the execution was the proper remedy, and no notice was required, as the real estate levied on was to be sold on the first day of the term. ( Parker vs. Han. & St. Joe R. R. Co., 44 Mo. 415.)

         III. When proceedings are clearly irregular and void, the courts will quash them. (3 Bouv. Inst. n. 3342.)


         WAGNER, Judge.

         The exceptions in this cause arise on the action of the court in sustaining a motion to quash an execution.

         From the exhibits, it appears that the plaintiff brought his suit by attachment, and the petition contained three counts; one founded upon a promissory note; one on an open account; and the other was a declaration for money loaned.

         The defendant appeared and filed his plea in abatement, which was sustained by the court, and the attachment was dissolved. No answer being filed, the court at the same term rendered judgment in favor of the plaintiff for the amount of the note set out in the petition....

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