Coombs Commission v. Block
| Decision Date | 26 November 1895 |
| Citation | 32 S.W. 1139,130 Mo. 668 |
| Parties | Coombs Commission Company v. Block, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Affirmed in part and reversed in part.
Frank Titus for appellant.
(1) The court has jurisdiction by reason of the constitutional questions involved. State, etc., v. Francis, 95 Mo 44. (2) Defendant was entitled as of right to a trial of the issues raised by the affidavit for attachment and its denial was error. See Farrington v. McDonald, 28 Mo. 581. (3) That matter in abatement is as creditable a defense as matter in bar; and that the common law rule no longer holds in Missouri, see Little v. Harrington, 71 Mo. 390; Cohn v. Lehman, 93 Mo. 574, 582, 583. See, also Bank v. Foster, 90 Tenn. 735. (4) The defendant was entitled as of right to withdraw his answer and so permit the issues on the attachment to remain. The trial court improperly overruled defendant's verified motion to that effect set out at page 10 of abstract. The grounds set out in such motion were adequate and not controverted. Eldred v Bank, 17 Wal. 545; Boatman's Saving v. Forbes, 52 Mo. 201; 1 Tidd's Practice, 488, 622, 668, 673; Elliott v. Secor, 60 Mo. 163. (5) The motion to quash the jury panel was erroneously overruled. State, etc., v. Co. Ct., 89 Mo. 237; Murnane v. St. Louis, 27 S.W. 711. The panel was not drawn or summoned as required by the act of 1879, providing for a jury commissioner in cities having over one hundred thousand inhabitants. (6) Error was committed by the trial court in compelling defendant to go into trial when by law no issues of fact existed. (7) The court erred in refusing instructions as asked by defendant. (8) It was error to refuse defendant the opening and closing of the case. Railroad v. Bryan, 90 Ill. 126; Bank v. Metcalf, 29 Mo.App. 384.
J. B. Hammer for respondent.
(1) It does not appear how the jury was drawn or selected, hence this court can not review that matter. Every act of the court is presumed to have been done rightfully and according to law until the contrary is shown. Gates v. Tusten, 89 Mo. 13; Schell et al v. Leland, 45 Mo. 289; Ellis v. Jones, 51 Mo. 186; McDonald v. Frost, 99 Mo. 44; Claflin v. Sylvester, 99 Mo. 276. (2) Filing a plea to the merits in an attachment suit waives a plea in abatement. (3) The court committed no error in its rulings on the instructions. (4) Under the admissions contained in the pleadings plaintiff was entitled to open and close.
Plaintiff sued for the price of two car loads of potatoes sold to defendant. The petition stated the particulars of the sale, and that defendant was hence indebted to plaintiff in the sum of $ 363.23, as appeared by an itemized account attached. It gave defendant credit for $ 36.57, and asked judgment for the balance, $ 326.66.
The answer denied the allegations of the petition, and set up a counterclaim for a large lot of barrels of apples, sold at various times to plaintiff, and not fully paid for, as appeared from an account filed therewith. In that account plaintiff was given certain credits, leaving an alleged balance of $ 282.50, claimed by defendant, for which (with interest) he asked judgment.
As there is some question as to the effect of the reply on the rulings discussed, we quote that pleading in full, omitting only caption and signature:
Accompanying the reply is an account beginning thus:
Then follows a long list of credits and debits, many items of which correspond with the defendant's apple account, contained in the exhibit to his answer. The duplicated items need not be recited. Those not duplicated are as follows:
At the outset of the action, plaintiff obtained a writ of attachment against the defendant's property, upon the usual affidavit and bond therefor.
On the first day of the return term of the writ, defendant filed a statutory plea in abatement of the attachment.
Two days later he filed the answer already mentioned.
Plaintiff moved to strike out the defendant's plea, on the ground that, by answering to the merits, defendant waived the plea to the attachment.
The court sustained that motion.
The cause of action was then tried, and plaintiff got judgment, from which defendant appealed, after the usual steps.
Before the trial, defendant objected to the panel of jurors on the theory that the act of 1891 (Laws, 1891, p. 172), under which it was summoned, was unconstitutional.
The above is a sufficient sketch of the case for the purposes of this appeal, though we may add some minor facts in dealing with certain points of practice discussed.
1. Is a statutory plea, denying the grounds of attachment, waived by an answer to the merits? The trial court answered in the affirmative.
If the matter in abatement was directed at the action itself (as for example, a plea to jurisdiction over the person), it might be separately pleaded in an answer without thereby waiving an accompanying plea to the merits.
That rule is firmly established now by decisions in Missouri. Little v. Harrington (1880) 71 Mo. 390; Byler v. Jones (1883) 79 Mo. 261; Christian v. Williams (1892) 111 Mo. 429 (20 S.W. 96). Although a different doctrine, suggested by the principles of an older system of pleading, has been at times approved. Rippstein v. Ins. Co. (1874) 57 Mo. 86; Moody v. Deutsch (1884), 85 Mo. 237.
Is there any sound distinction or difference observable, in this regard, between actions begun by ordinary summons and those having an attachment feature?
Is there not rather stronger reason to apply the principle declared in Little v. Harrington (1880), 71 Mo. 390, to statutory pleas in abatement of an attachment than to ordinary actions? For in the latter, a plea in abatement in an answer, if sustained, may cause the dismissal of the whole case, while that result does not follow the sustaining of a plea intended to get rid of an attachment. When the latter is sustained, the action proceeds "as if it had been commenced by summons only." R. S. 1889, sec. 569, and sec. 562, as amended, Laws, 1891, p. 45.
Abating an attachment, therefore, has less bearing on the other issues in the case than a successful plea in abatement in an ordinary answer, along with a plea to the merits.
The so-called statutory plea to the attachment is not strictly a plea in abatement. It is called by the law "a plea in the nature of a plea in abatement." R. S. 1889, sec. 561. Though it is usually denominated, for the sake of brevity, a plea in abatement, it is no longer even a plea in abatement of the action. It is only a plea to abate the attachment, and the attachment is merely ancillary to the cause of action presented by the petition. Stutzner v. Printz (1895), 43 Neb. 306 (61 N.W. 620).
A case begun by attachment possesses a dual character. The truth of the facts charged in the affidavit for attachment, if denied by the statutory plea, forms a distinct issue for trial. There is no inconsistence between a traverse of those facts and a denial of, or other defense to, the allegations of the petition.
We are not unmindful that the views above given are not in harmony with some earlier decisions (for instance, Fugate v. Glasscock (1842) 7 Mo. 577; Hatry v. Shuman (1850) 13 Mo. 547; Cannon v. McManus (1852) 17 Mo. 345; Green v. Craig (1870) 47 Mo. 90), or with occasional remarks in other cases. Bourgoin v. Wheaton (1860) 30 Mo. 215; McDonald v. Fist (1875) 60 Mo. 172; Beattie v. Stocking (1879) 70 Mo. 196.
But yet those views appear to us to logically arise from the ruling in Little v. Harrington, 71 Mo. 390, and the other cases which have followed it on the point of present discussion.
The decision last named disapproved Fordyce v. Hathorn (1874) 57 Mo. 120, which was "an action commenced under the landlord and tenant act by attachment," and in which defendant, "in the same answer, set up matter in abatement of the attachment, and also defenses in bar of the action."
The Fordyce case, begun by attachment, was disapproved along with the Rippstein case, 57 Mo. 86, in which matter in abatement had been introduced into an answer containing defenses on the merits. In both of these cases the ruling was that the matter in abatement was waived by the matter in bar. Both were alike disapproved in the Little v. Harrington judgment.
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