Rosenthal v. Widensohler

• Decision Date: 14 November 1905
• Citation: 115 Mo. App. 237,91 S.W. 432
• Parties: ROSENTHAL et al. v. WIDENSOHLER.
• Court: Missouri Court of Appeals

91 S.W. 432

115 Mo. App. 237

ROSENTHAL et al. v. WIDENSOHLER.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

1. JUSTICES OF THE PEACE — ATTACHMENT — TRUTH OF AFFIDAVIT — DATE.

Under Rev. St. 1899, § 3850, authorizing an action before a justice to be instituted by attachment, and in such case providing that the action shall be deemed commenced on delivery of the writ to the constable to be served, the truth of the affidavit as to the causes of attachment herein alleged must be tried and determined as of the date the writ was delivered to the constable for service.

2. SAME — EFFECT OF RETURN.

In an action before a justice commenced by attachment, where, under Rev. St. 1899, § 3850, making the delivery of the writ to the constable for service the commencement of the action, so that the truth of the affidavit as to the causes of attachment must be determined as of that date, the return made on that date, executed by leaving a copy at the usual place of abode of defendant with a member of his family over the age of 15, conclusively negatives the grounds of attachment that defendant has absconded, absented, or concealed himself, so that the ordinary process of law cannot be served on him.

Appeal from St. Louis Circuit Court.

Action by Myer S. Rosenthal and others against Theodore Widensohler. Judgment for plaintiffs. Defendant appeals. Reversed in part.

This suit is by attachment. It was instituted before a justice of the peace in the city of St. Louis. The grounds for attachment alleged in the affidavit are two: First, that the defendant conceals himself so that the ordinary process of law cannot be served upon him; second, that the defendant has absconded or absented himself from his usual place of abode in this state so that the ordinary process of law cannot be served upon him. The affidavit was filed before the justice of the peace October 15, 1903. The writ of attachment thereon was issued and delivered to the constable on October 16, 1903, on which date he indorsed his receipt thereof on the writ and procured service in the cause by delivering a copy of the writ to a member of the defendant's family over 15 years of age, at his usual place of abode in the city of St. Louis, and further attaching certain property described in the writ. The constable's return on the writ shows that he executed the writ on the same date that he received it and obtained the ordinary process of law upon defendant. The material portions of the return are as follows: "Return. Executed the within writ of attachment and summons the 16th day of October, A. D. 1903, by leaving a true copy of the same at the usual place of abode of the within named Theodore Widensohler with a member of his family over the age of fifteen years. E. J. Morrissey, Constable, per T. McAlvey, Deputy."

The case was tried before the justice of the peace, and finally found its way into the circuit court, where the allegations of the affidavit were put in issue by plea in abatement. Upon a trial de novo, a jury being waived, the issues on the plea in abatement were tried to the court. At the conclusion of the evidence on behalf of plaintiff the defendant asked the court to declare the law to be that under the law and the evidence the plaintiff could not recover, and renewed this demurrer at the conclusion of the whole case, both of which were overruled by the court, and exceptions saved. After unsuccessful motions for new trial and in arrest the case was brought here by appeal by the defendant, who insists that by the constable's return, which is conclusive on the parties to the record, it appears that the defendant neither absconded nor absented himself nor concealed himself so the ordinary process of law could not be served upon him, and therefore no cause for the attachment existed, as conclusively appears by the record, and the judgment must be reversed.

Rassieur & Buder, for appellant. Phil. H. Sheridan and Henry B. Davis, for respondents.

NORTONI, J. (after stating the facts).

Section 3850, Rev. St. 1899, provides that suits before a justice of the peace may be instituted by the voluntary appearance of the parties or by process, that the process shall be by summons or attachment, and that the action is deemed commenced "if by process, upon the delivery of the writ to the constable to be served and he shall note thereon the time he received the same." This statute is conclusive upon this question, and in view of its positive rule the suit cannot be taken to have been commenced on October 15th, the date of the making and filing of the affidavit, for to do so would abrogate a positive statute on the subject. Nor can the writ be considered as issued on October 15th, the date on which it was actually issued, inasmuch as for reasons of public policy, sufficient to them, and with which this court is not concerned, the Legislature has commanded that in suits by attachment, instituted before a justice of the peace, the suit shall be deemed commenced "upon delivery of the writ to the constable to be served." Therefore the cause must be treated as having been instituted October 16th, the date of the delivery of the writ to the constable for service. Section 3850, Rev. St. 1899; McGrath v. Railway Co., 128 Mo. 1. 30 S. W. 329; Hornsby v. Stevens, 65 Mo. App. 185; Heman v. Larkin, 99 Mo. App. 294, 73 S. W. 218. For the reasons given, the causes for attachment alleged in the affidavit must be tried and determined in this case as of the date the writ was delivered to the constable for service. And likewise the issue as to the truth or falsity of that affidavit must be determined as of that date.

It results from the arbitrary mandate of the statute in this behalf that the rule in this respect is somewhat different from that usually obtaining in attachment suits instituted in the circuit court. In those cases it has been frequently decided that the plea in abatement puts in issue the truth of the affidavit at the time the writ was actually issued. Graham v. Bradbury, 7 Mo. 281; McClanahan v. Brack, 46 Miss. 246; Drake on Attachment (7th Ed.) 1891, § 111. The generally accepted doctrine in this state on the subject of the time of the commencement of an action in the circuit court is that...