Avery v. Good

• Decision Date: 27 February 1893
• Citation: 21 S.W. 815,114 Mo. 290
• Parties: AVERY v. GOOD.
• Court: Missouri Supreme Court

21 S.W. 815

114 Mo. 290

AVERY v. GOOD.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

ATTACHMENT — WRITS — SERVICE BY PUBLICATION — AFFIDAVIT — COLLATERAL ATTACK.

1. Where an affidavit in attachment sets forth all the facts necessary to obtain a writ and an order of publication, both the writ and the order may be granted without the filing of another affidavit.

2. The facts that the affidavit does not state the venue, and is made nearly three months before action brought, do not render a judgment rendered thereon void upon collateral attack, since these defects, if raised in the attachment suit, might have been obviated by filing an amended affidavit.

3. Where an affidavit sworn to in Indiana states that the defendant "is not a resident of this state," and the affidavit is entitled in an action brought in Missouri, and is sworn to the same day that the plaintiff executes an attachment bond which states that he is about to begin an attachment suit in Missouri, the affidavit will be deemed, on collateral attack, a sufficient statement that the defendant was not a resident of Missouri.

Appeal from circuit court, Henry county; D. A. De Armond, Judge.

Ejectment by Angus C. Avery against Reuben Good. Defendant obtained judgment. Plaintiff appeals. Affirmed.

Wm. O. Mead, for appellant. Saml. E. Price and Jas. Parks & Sons, for respondent.

BLACK, C. J.

This is an action of ejectment for 80 acres of land in Henry county. William H. Reed is the common source of title. In 1884 the probate court of St. Clair county made an order directing the public administrator to take charge of the estate of said Reed, and in 1888 the administrator sold this land in Henry county, and the plaintiff became the purchaser, and received a deed, dated the 11th February, 1888. This is the plaintiff's title. The defendant put in evidence a deed from the sheriff of Henry county to Jason Blackford, dated the 18th April, 1878, based upon a sale made by virtue of a special execution issued upon a judgment of the circuit court of Henry county in favor of Salina J. Morgan, guardian of Lewis and Joseph Morgan, against said William H. Reed, and a deed from Blackford and wife to Louis and Joseph Morgan. The circuit court gave instructions to the effect that the administrator's deed and the sheriff's deed were both void, because of alleged irregularities in the prior proceedings. The sheriff's deed antedates the proceedings had in the probate court, and, if that deed is valid, and conveyed the title of Reed, then the judgment is for the right party, and it will be unnecessary to consider the objections made to the administrator's deed. The suit of Salina J. Morgan, guardian, etc., against William H. Reed, was commenced by attachment and notice to the defendant by order of publication. The defendant made no appearance. The objections to the sheriff's deed are all based upon the alleged insufficiency of the affidavit for attachment. From the papers and proceedings in that case produced in evidence in this one it appears the petition was filed on the 19th June, 1877. An affidavit and attachment bond appear among the papers in that case, but they have no file mark upon them, showing when deposited with the clerk. On the 19th June, 1877, the day on which the petition was filed, the clerk issued a writ of attachment, and on the same day he made an order of publication, stating by way of recital that now comes the plaintiff in vacation, and "files her petition against the said defendant, and also an affidavit, stating, among other things, that the defendant is a nonresident of the state of Missouri," etc. The affidavit is as follows: "Affidavit in attachment suit. Salina J. Morgan, Plaintiff, vs. William H. Reed, Defendant. Attachment in civil action, circuit court. This affiant states that the plaintiff in the above-entitled cause has a just demand against the defendant therein, now due, and that the amount which this affiant believes the plaintiff ought to recover after allowing all just credits and set-offs is thirty-eight hundred and fifty-seven and 35-100 dollars and thirty-five cents, and that this affiant has good reason to believe, and does believe, that the defendant, William H. Reed, is not a resident of this state. Salina J. Morgan, Affiant. Subscribed and sworn to before me this 31st day of March, A. D. 1877. [L. S.] W. A. Peebles, Notary Public." The impression made by the notarial seal discloses these words: "Notary Public, Indiana. Seal."

1. The affidavit to which the clerk refers in his order of publication must be the affidavit above set forth. It must, therefore, have been filed with the petition, and it is the affidavit on which the writ of attachment was issued and the order of publication made. As it sets forth all the facts necessary to obtain a writ of attachment and an order of publication, there was no need of filing two affidavits. The one was sufficient for both purposes. Burnett v. McCluey, 92 Mo. 230, 4 S. W. Rep. 694.

2. The chief objections are that the affidavit is void as an affidavit in attachment, for these reasons: First, for want of a statement of the venue; second, because it was made two months and twenty days...