Abernathy v. Moore

• Decision Date: 31 October 1884
• Parties: ABERNATHY et al., Appellants, v. MOORE, Public Administrator.
• Court: Missouri Supreme Court

83 Mo. 65

ABERNATHY et al., Appellants,

v.MOORE, Public Administrator.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Scarritt & Scarritt for appellants.

The record shows, in brief, a suit instituted; bond and affidavit in attachment filed; property of defendant seized by the proper officer, under writ of attachment, and in custodia legis; plea in abatement filed by defendant; issue upon plea in abatement submitted to court; twelve days thereafter defendant's death suggested. The question arises, what was the duty of the justice in the premises? The remedy by attachment is purely statutory. Lackland v. Garesche (56 Mo. 267), and chapter 6, Rev. Stat. of 1879, contains the law of our state upon the subject. This chapter is a complete law within itself. It is divided into two articles, comprising “Attachments in Courts of Record” and “Attachments before Justices of the Peace.” The last section of the chapter (§ 481, p. 76) says “that the provisions of law governing attachments in courts of record shall apply to attachments before justices of the peace, so far as the same may not be inconsistent with the provisions which are specially applicable to the latter,” and then goes on to except certain proceedings from the operation of this language, but does not except the proceeding contended for in this action. Section 440, page 70 (same chapter), provides that in a case like this, where defendant dies after levy of the writ and before judgment, the action “shall be proceeded on to final judgment and determination, in all respects and in like manner as if the defendant were living.” And section 442 provides the manner in which the judgment on attachment, if one is obtained, shall be satisfied out of the attached property. (See also Rev. Stat., 1879, p. 19, §§ 121 and 122.) There is nothing in “attachments before justices of the peace,” which conflicts with section 440, and hence we say the justice should have proceeded to render his decision upon the issues raised upon the plea in abatement, instead of sending a transcript of his docket to the probate court. By reference to Rev. Stat. 1879, § 1176, p. 209, our position is made still stronger, as nothing therein appears by which jurisdiction is conferred upon a probate court to try attachment cases, and it is evidently the intention of the law that attachments shall not be dissolved by reason of the death of the defendant.

Gates & Wallace for respondent.

MARTIN, C.

This is a suit by attachment, and was commenced before a justice of Kaw township, Jackson county. In the affidavit setting forth the grounds of the attachment, T. B. Scruggs, the defendant therein, was charged with removing his property out of the state and with removing and concealing it with intent to hinder, delay, and defraud his creditors. It was also alleged that he was about to remove out of the state with the intent to change his domicile. He appeared to the action and by proper plea contested the grounds of the attachment. The justice heard evidence on the issues thus raised, and continued the cause from the 13th to the 15th of January, 1880. On the 22nd of January, 1880, the death of defendant was suggested to the justice, and thereupon an order was entered, that a transcript of the docket in the case, with all papers relating to the suit, be certified and returned to the probate court of Jackson county. This order was complied with, and the cause was tried in that court by jury, and judgment rendered in favor of the administrator having charge of the estate of the decedent. On appeal to the circuit court, another trial by jury resulted in a verdict for defendant, from which the plaintiff appeals.

I. The material and controlling question presented in this record relates to the action of the justice in sending the case to the probate court for trial instead of trying it himself. Section 440 in the attachment law provides that, in event of the death of defendant, the cause shall be proceeded in to final judgment and determination as if he was living, his representative being first brought in. It is true that this provision, on its face, purports to relate only to suits in courts of record. But section 481 declares that “the provisions of law governing attachments in courts of record shall apply to attachments before justices of the peace, so far as the same may not be inconsistent with the provisions which are specially applicable to the latter.” No provision specially applicable to attachments before justices of the peace appears to be inconsistent with the requirements of section 440; so that it would seem that justices of the peace were intended to be governed by it in like manner with courts of record. Thus stood the law prior to the revision of 1879. 1 Wag. Stat. pp. 190, 197. That revision contains these same provisions.

Now it is urged that section 2946 of the revision of 1879 operates as a modification of the pre-existing statutes, and requires the justice upon the death of a defendant, to certify the cause to the probate court for trial, instead of proceeding with it to final judgment as before. I have examined this section, and fail to recognize in it any application to suits by attachment. It purports to regulate the disposal of ordinary actions before justices--such demands as the probate court could dispose of, were they in the first instance, upon death of defendant, brought before that court.

The action by attachment rests upon special statutes, which must be consulted to ascertain the form and substance of the proceeding. The legislature having by special statutes defined and regulated suits by attachment both in courts of record and before justices of the peace, the force and effect of such statutes cannot reasonably be regarded as changed by provisions in the general law, such as sec. 2946, which relate to suits before justices, and omit all mention or reference to suits by attachment. In our opinion, the justice acted without authority of law, when he refused to entertain further jurisdiction of the case, and sent his transcript to the probate court. This conclusion is in accord with the previous decisions of this court in disposing of kindred questions. Honacher v. Chaney, 61 Mo. 129; Huff v. Alsup, 64 Mo. 51; Fletcher v. Wear, 81 Mo. 524. The probate court has no jurisdiction to try actions of attachment. To approve the action of the justice in this case, we would have to hold that such jurisdiction had been conferred upon it by implication in the section referred to, which makes no mention of such actions. A conclusion leading to such a state of things cannot be supported by either principle or authority.

II. The probate court having no jurisdiction to entertain actions by attachment, no appearance of the parties there could confer such jurisdiction. Jurisdiction over the subject matter must come from the law, not from the consent of the parties either express or implied; and an objection to it is not waived by pleading to the merits, but may be taken at any time before or after trial. Brown v. Woody, 64 Mo. 547; Kleinsteuber v. Schumacher, 35 Wis. 612; Nazro v. Cragin, 3 Dillon 474; Mathie v. McIntosh, 40 Wis. 120; Wildman v. Rider, 23 Con. 172. The probate court having no jurisdiction of the subject matter of the suit, none could be conferred upon the circuit court by virtue of an appeal from it.

But the relation occupied by the circuit court to this suit differs materially from that of the probate court. The demand sued on is a bill of exchange in the sum of $250, over which the circuit court has original jurisdiction. The action could have been instituted in the first instance in the circuit court. If the proceeding was an ordinary suit by summons alone, the way out of this tangle would be very apparent. For while the plaintiff appeared in that court in the first instance for the sole purpose of objecting to the jurisdiction of the court, yet when his motion to that effect was overruled, he...