Chenault v. Chapron

• Decision Date: 30 September 1838
• Parties: CHENAULT v. CHAPRON & NIEDELET.
• Court: Missouri Supreme Court

5 Mo. 438

CHENAULT

v.CHAPRON & NIEDELET.

Supreme Court of Missouri.

September Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY.

J. G. MILLER, for Appellant. The appellant will insist upon the following points: 1. That the court improperly sustained the demurrer to defendant's plea in abatement--Stevenson & Hoard v. Robbins, 5 Mo. R. 18. 2. That the court erred in overruling the defendant's motion to dismiss the writ of attachment.

HAYDEN, for Appellee.

EDWARDS, J.

Chapron & Niedelet sued Chenault by attachment in the Morgan Circuit Court. The statement of the cause of action on which the attachment was founded, was in the form used in suits by petition in debt. The affidavit filed in the cause states that the affiant “verily believes that the above named John Chenault is about to remove his property out of the State of Missouri, so as to hinder or delay his creditors.” At the return term of the writ, the defendant appeared and filed a plea in the nature of a plea in abatement, alleging “that he, the said John Chenault, did not intend to remove his property out of the State of Missouri, so as to hinder or delay his creditors.” To this plea the plaintiff demurred, and for cause of demurrer alleged “that said plea did not deny that said affiant did believe that said defendant was about to remove his property without the State of Missouri, so as to hinder or delay his creditors.” The court sustained the plaintiffs' demurrer and ruled the defendant to answer oyer. The defendant then moved the court to dissolve the attachment, because there was no sufficient lawful statement of the cause of action on which to base the attachment. This motion was also overruled, and the defendant not having answered further, the court gave judgment for the plaintiff for his debt, damages and costs. The defendant brings the cause here by appeal. The only two points insisted on by the appellant to reverse the judgment of the Circuit Court, are: 1. That the court improperly sustained the demurrer to the plea in abatement. 2. That the court erred in overruling the motion to dissolve the attachment. The last point made here will be examined first.

The counsel for the appellant insist that a creditor cannot sue out an attachment against his debtor on an ordinary petition in debt. The act for the recovery of debts by attachment, provides that “any creditor wishing to sue his debtor by attachment, may file in the clerk's office of any county in the State, a declaration or other lawful statement of his cause of action,” upon which an original attachment may be sued out--Rev. Code '35, § 2 p. 76. The question here is, whether the statement used in suits by petition in debt, is such a “lawful statement of the plaintiff's cause of action” as the above section requires in proceedings by attachment. In using the phrase, “or other lawful statement of his action,” the Legislature evidently intended that an attachment might issue on other statements than the ordinary declaration. What other statement then was intended? Except the ordinary declaration, there could probably be no statement of a cause of action, when the suit was on a bond or note, preferable to the form used in suits by petition in debt. But the appellant insists that when an attachment is sued out on such a statement, the provisions of the law regulating suits by petition in debt, will conflict with the, law regulating proceedings by attachment. There seems, however, to be no reason for any conflict. Under the attachment law, “original writs of attachment shall be issued and returned in like time and manner as ordinary writs of summons, and when the defendant is summoned to answer to the action, the like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts, and a general judgment may be rendered for or against the defendant.” Rev. Code, '35, p. 76, § 5. What is meant here by the term “ordinary actions”? It seems to be used in contradistinction to the extraordinary remedy by attachment, and includes actions by petition in debt, as well as actions on declarations at common law. Both are ordinary actions in reference to our attachment law. “When the defendant is summoned to answer the action, the like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts.” If the attachment be sued out upon a declaration, and the defendant be served with process fifteen days before the return term, then he must appear and plead as in any other action founded on a declaration; that is, on or before the sixth day of the return term, if the term shall so long continue, and if not, then before the end of the term. Rev. Code 1835, 458, § 8. In such cases the attachment proceeds according to the provisions of the act to regulate practice at law. If the attachment be sued out upon a petition in debt, and “the defendant shall have been personally served with process, then he must appear and plead as in an action by petition in debt”; that is, “he shall plead to the merits of the action on or before the second day of the term at which he is bound to appear, if the term shall so long continue, if not, then within such time in the term as the court shall direct. Rev. Code 1835, 449, § 4. In such cases the attachment proceeds according to the provisions of the act to regulate proceedings by petition in debt. The provisions of the act to regulate practice at law, and the provisions of the act to regulate proceedings by petition in debt, are inconsistent with each other, but neither conflict with the provisions of the attachment law. In all cases where the defendant is summoned to appear, the attachment law requires the aid of one or the other of the above mentioned acts to carry out its provisions, and the provisions of either of these acts, however inconsistent with each other, work well and smoothly with the attachment law. The only inconsistency pointed out by the counsel for the appellant, seems to be founded on an incorrect reading of the law. The counsel states that “in suits by attachment, the defendant, if regularly summoned, must appear...