Brownwell & Wight Car Co. v. Barnard
| Decision Date | 11 May 1897 |
| Citation | 40 S.W. 762,139 Mo. 142 |
| Parties | Brownwell & Wight Car Company, Plaintiff In Error, v. Barnard et al.; Colbern, Interpleader |
| Court | Missouri Supreme Court |
Error to Johnson Circuit Court. -- Hon. James H. Lay, Special Judge.
Reversed and remanded.
W. B Thompson and J. W. Suddath for plaintiff in error.
(1) There being no other property attached than the four street cars under the writ of attachment, and the interpleader having claimed the property attached and that issue having been decided in favor of the interpleader by final judgment there was practically no attachment suit pending. The attachment and all of its incidents had been determined, and hence the court had no jurisdiction whatever to order a new bond. Drake on Attachments [1891 Ed.], sec. 5. (2) "Such a suit is in all respects an action in personam, with the added incident that the property attached remains liable under the control of the court, to answer any demand which may be established against the defendant by the final judgment of the court." Cooper v. Reynolds, 10 Wallace, 308. (3) The interpleader's claim in this case was like an action of replevin engrafted upon the attachment suit, and after that suit was determined there was nothing further for the court to determine in regard to the interpleader. Burgert et al. v. Borchert et al., 59 Mo. 80. (4) It is submitted, therefore, that the court had no jurisdiction over the attachment suit at the time the motion to dismiss was made, nor was Colbern, the interpleader, in court, or had any standing authorizing him to make such a motion.
O. L Houts for defendant in error.
The record in this case shows that this was an action in which a writ of summons was issued to the defendants, Frank Barnard, J. B. Wood, Frank Wood and M. Fairchilds Doud, all of whom were served with a summons, except defendant Frank Barnard, who entered his appearance in said cause. There was also a writ of attachment issued in the case, and under said writ four street cars were levied upon as the property of defendants. This property was claimed by George W. Colbern, who subsequently filed an interplea in the case, and the issue was formed upon that interplea, and upon the trial of that issue judgment was entered in favor of the interpleader. The judgment was appealed from, and was subsequently affirmed in the Supreme Court.
After that judgment was affirmed in the Supreme Court, and the cause of action on the interplea entirely disposed of, Colbern, the interpleader, appeared before the circuit court and filed a motion to compel plaintiff to give a new attachment bond. The attachment practically was disposed of when this motion was made, but the plaintiff offered to and did dismiss its attachment writ, and demanded a trial upon the merits of the cause. This was denied plaintiff, and the court thereafter sustained a motion of the interpleader to dismiss the suit upon its merits, because plaintiff failed to give a new attachment bond. The only question therefore for decision is, did the circuit court err in dismissing the case on the motion of the interpleader?
Section 556, Revised Statutes 1889, provides that, "When the defendant has been served with the writ, or appears to the action, the proceedings in the cause shall be the same as in actions instituted by summons only, and the judgment and execution shall hold, not only the property attached, but the other property of defendant." By section 572, Revised Statutes 1889, a statutory replevin is engrafted on the attachment act. It provides that "any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, and issues may be made upon...
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