Cannon v. McManus

• Citation: 17 Mo. 345
• Parties: CANNON, Defendant in Error, v. MCMANUS, Plaintiff in Error.
• Decision Date: 31 October 1852
• Court: United States State Supreme Court of Missouri

17 Mo. 345

CANNON, Defendant in Error,

v.MCMANUS, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1852.

1. Under the new code, a defendant in an attachment suit cannot, in the same answer, plead in abatement to the truth of the affidavit, and in bar to the merits of the action. By so doing, he waives the plea in abatement.

Error to Law Commissioner's Court.

Cannon brought a suit by attachment against McManus. McManus filed an answer, denying the truth of the affidavit on which the attachment issued, and also the indebtedness charged in the petition. At the trial, the court refused to try any issue but that made on the indebtedness, and excluded all evidence offered to disprove the affidavit, holding that the plea in abatement was waived by the plea in bar; to which the defendant excepted. There was a judgment for plaintiff, and defendant brings the case here by writ of error.

H. Dusenbury, for plaintiff in error. 1. The fifteenth section of article five of the new code, requires that “the pleadings and procedure (in attachment suits) shall be, as near as may be, according to the provisions of this act. Section 7 of article 6, requires of defendant a specific denial of every allegation of the petition controverted by the defendant; and section 8 of same article, gives the defendant the right to set forth in his answer as many grounds of defense as he shall have. By article 6, section 2, the only pleading allowed on the part of the defendant is either a demurrer or answer. The defendant insists that, in pleading in bar and in abatement, in the same answer, he has only fulfilled the requirements of the new code, and cannot be deemed to have waived his right to contest the validity of the writ and the truth of the affidavit. 2. The affidavit omits the material word “fraudulent,” and does not state that “the affiant has good reason to believe and does believe” the existence of any one or more of the causes which would entitle him to sue by attachment, under the first section of the act of 1845. Stevenson v. Robbins, 5 Mo. 18. When judgment is rendered on an affidavit, not warranted by statute, the judgment will be set aside for irregularity even after the lapse of several years. Alexander v. Hayden, 2 Mo. 228.

RYLAND, Judge, delivered the opinion of the court.

1. From the foregoing statement, the question arises, whether a defendant, against whom an attachment has issued, can, in the same answer, respond to the merits of the plaintiff's petition...