Brotherton Adm'r ex rel. Smith v. Thomson

• Court: Missouri Supreme Court
• Writing for the Court: MCBRIDE
• Citation: Brotherton Adm'r ex rel. Smith v. Thomson, 11 Mo. 94 (Mo. 1847)
• Decision Date: 31 October 1847
• Parties: BROTHERTON ADM'R &C., TO USE OF SMITH ET AL. v. THOMSON.

11 Mo. 94

BROTHERTON ADM'R &C., TO USE OF SMITH ET AL.

v.THOMSON.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS CIRCUIT COURT.

HOLMES, for Plaintiff.

1. A special order of court requiring the property to be produced at a specified time and place and delivered up to the sheriff is requisite under the statute and an execution is no sufficient order. Rev. Stat. 1835, § 14, p. 78, and § 37, p. 80. The words seem expressly to require that the defendant is to be ordered to produce the goods, “when and where” i. e. at a specified time and place. There could be no delivery without a time and place. Then the words imply that the goods are to be always subject to the order of court. The causes of action were not therefore the same and the judgment pleaded is no bar. 1 Phil. Ev. 321; 1 Cowen & Hill's Notes, 557; 1 Greenl. Ev. §§ 528, 530; Story's Pl. 191-2, and cases cited.

2. Another point is made upon the bill of exceptions, that there was error in granting a new trial to the defendant on his motion and affidavit. The case of Davis v. Davis, 8 Mo. R. 56, lays down the doctrine, that if the plaintiff in such cases would avail himself of the error, he must abandon his case at that point, and not proceed to a second trial. As this case went off upon a demurrer to the rejoinder filed immediately after the verdict was set aside, and there has been no second trial, it is submitted, that there is a distinction between this case and that--and that the court can look into the matter. This point is made, that the demurrer was properly stricken out as not being filed within time, nor by leave of the court, and that although by the rules of court no default could be taken, if a pleading were filed though after time. Yet it was competent for the parties to move to strike it out, as not being properly on file, the other party having due notice of the motion. Rules of Circuit Court, Nos. 8 & 22. If the demurrer was properly stricken out, then there was no good reason for setting aside the verdict, the absence of defendant's counsel as stated in his affidavit not being a sufficient reason in law. Steigers v. Darby, 8 Mo. R. 679.

SPALDING & TIFFANY, for Defendant.

MCBRIDE, J.

This was an action of debt on a bond given to the late sheriff of St. Louis county for the redelivery or forthcoming of property attached, in the case of Smith and others against Cover and Gillispi and the defendant, Thomson, who was security in the bond. That suit was brought to the March term, 1837, and the attachment levied on the property of the defendants, which was restored upon the execution of the bond. At a subsequent term judgment was rendered in the case, and execution issued thereon, which was returned nulla bona. No goods returned under the bond. Suit was then instituted on the bond against Thomson, the security, without any special order having been obtained, directing the property attached to be produced, to satisfy the judgment. In that suit one of the pleas was, that the court had made no order on the defendant or his security to produce the goods attached; issue was taken on the plea by the plaintiff who offered in evidence the execution and sheriff's return, but the court held that a special order was necessary under the statute; whereupon a verdict was found for the plaintiff, on the other issues in the cause, and for the defendant on the issue aforesaid. The plaintiff took out his writ of error to this court, but there being no bill of exceptions saving the point, the judgment was affirmed.

The plaintiff subsequently applied...