Crescent Furniture & Lumber Co. v. Raddatz

• Decision Date: 06 December 1887
• Citation: 28 Mo.App. 210
• Parties: CRESCENT FURNITURE & LUMBER COMPANY, Respondent, v. OTTO RADDATZ; ADOLPH RADDATZ, Interpleader, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 210

CRESCENT FURNITURE & LUMBER COMPANY, Respondent, v. OTTO RADDATZ; ADOLPH RADDATZ, Interpleader, Appellant.

Court of Appeals of Missouri, St. Louis.

December 6, 1887

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

A. A PAXSON, for the appellant: The amendment was properly made. Rev. Stat., sects. 2937, 2939; Ward v. Pine, 50 Mo 38. The plaintiff, by proceeding with the trial on the theory that the amendment was properly made, waived his objections to the error, if any. Wellman v. Dismukes, 43 Mo 101; The State ex rel. v. Shelby, 75 Mo. 484; Vaughn v. Railroad, 17 Mo.App. 4, and cases cited; Merrill v. St. Louis, 83 Mo. 244.

O. B. GIVENS, for the respondent.

OPINION

THOMPSON J.

In this case certain credits were attached by garnishment in a suit instituted before a justice of the peace, and Elizabeth Guth interpleaded and claimed credit as her absolute property, and verified her interplea by her affidavit, as required by section 449, Revised Statutes. After the issue thus made came on for trial before the justice, and several witnesses had testified, the justice allowed the interplea to be amended so as to make it appear that it was prosecuted by Gustav Raddatz. This interplea, as thus amended, recites: " Comes now Elizabeth Guth, as agent of Gustav Raddatz, and interpleads in the above cause and states," etc., that the credit levied upon " was and still is absolutely the property of this claimant, Gustav Raddatz," etc. The justice rendered a judgment against the interpleader; but against what interpleader may be doubtful, because the title of the cause, as given in his transcript, is " Crescent Lumber & Furniture Company, a corporation, versus Otto Raddatz, def't.; Elizabeth Guth, interpleader." Thereafter, an affidavit for appeal was made in a cause substantially entitled as above, except the interpleader was recited as " Gustav Raddatz, by Elizabeth Guth, agent, interpleader." This affidavit recites that, on a day named, " came Elizabeth Guth, agent of Gustav Raddatz, who, being duly sworn, upon her oath says that the application for an appeal in the above-entitled cause is not made for vexation or delay, but because she believes the applicant (interpleader) is injured by the judgment of the justice." The appeal bond begins with the recital, " we, the undersigned, Gustav Raddatz, by Elizabeth Guth, as principal, and Henry Weigel as security, acknowledge ourselves indebted," etc. It then recites that " Gustav Raddatz, by Elizabeth Guth, as agent, has appealed from the judgment," etc., and is conditioned that " he shall satisfy such judgment, or if his appeal shall be dismissed, and he shall pay the judgment of the justice," etc.; and then the bond is signed and sealed by Elizabeth Guth, without any other addition, and is not signed or sealed by Gustav Raddatz.

In this state of the case the circuit court dismissed the appeal, on the ground, as is stated in the written arguments of counsel that the interplea was made by Elizabeth Guth and that the appeal was taken by Gustav Raddatz. Whether this is a sound conclusion must depend upon the view which is to be taken of the very informal and incongruous proceedings above recited. The statute allowing interpleas in attachment suits reads as follows: " 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 such interplea, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay." Rev. Stat., sect. 449. We are not prepared to say that, under this statute, the interplea would have to be verified by the affidavit of the claimant himself. We incline to think that it would be good if verified by some other person, competent as a witness, who claims to know the facts. This would seem to be a reasonable conclusion; since, otherwise, claimants residing at a distance, obliged to act by agents or...