Deck v. Wright
| Decision Date | 09 February 1909 |
| Parties | DECK, Respondent, v. WRIGHT et al., Appellants |
| Court | Missouri Court of Appeals |
Submitted January 12, 1909.
Appeal from Stoddard Circuit Court.--Hon. J. L. Fort, Judge.
REVERSED.
Judgment reversed.
Wammack & Welborn & Farris for appellants.
A judgment on which suit can be maintained must be final within the technical meaning of the term. Dow v. Blake, 39 Am. St. 161; Feeney v. Hinkley, 86 Am. St. 293; 23 Cyc. 1503. A judgment is not final which does not make some disposition of all the parties to the record. Implement Co. v. Marr, 168 Mo. 257; Baker v. St. Louis, 189 Mo. 378; Holborn v. Naughton, 60 Mo.App. 100; Webb v. Kansas City, 85 Mo.App. 148; McCord v McCord, 77 Mo. 166.
K. C Spence for respondent.
The judgment upon which this suit is founded and which was rendered in the justice court of C. W. Edwards, justice of the peace, upon a joint and several note was final as to T J. Wright and Frank Wright, defendants in this suit. R. S. 1899, sec. 766; Heagney v. Hopkins, 52 N.Y.S. 207, 211; State v. Woodson, 128 Mo. 497.
This action was begun by attachment before a justice of the peace of Stoddard county. The only statement filed before the justice was an affidavit of respondent to the effect that he has a just demand against T. J. Wright and F. H. Wright, the appellants here, amounting to $ 63.63 principal and five years' interest, $ 50.88, together with $ 23.90 costs--a total of $ 138.38; that respondent was the purchaser and assignee of a certain judgment rendered in a justice's court in favor of one Dublin, on April 13, 1900; that respondent "is suing out this writ of attachment as assignee" upon said judgment, and the judgment as shown by the docket record of the justice is set out in the affidavit in full, by which judgment, as so set out, it appears that appellants and one E. O. Braley were summoned to appear before the justice on February 24, 1900, to answer a demand on a note for $ 60 and $ 3.60 interest, the note being made by appellants and Braley; that summons was served on the appellants, but returned "not found" as to Braley. The judgment then proceeds: "Parties enter into trial before the justice and after hearing the testimony and argument it is adjudged by me that the defendant (plaintiff) have judgment against T. J. Wright and F. H. Wright for $ 63.63 with eight per cent interest from date of judgment until paid and all costs of this suit and continued as to E. O. Braley." Following the judgment, as set out in the affidavit, is the notation
The affidavit then continues, after averring that the judgment is now due, that affiant (respondent here) has good reason to believe that the defendants (appellants here) have or are about to do various acts that subject them to proceeding by attachment.
This affidavit, as substantially set out above, was the only statement filed with the justice.
A writ of attachment was issued by the justice, which in usual form summoned the appellants (defendants below) to appear before the justice "to answer the action of the plaintiff," and the return of the constable shows personal service on the defendants but no levy or attachment upon any property, although the return does state that the constable summoned certain parties as garnishees.
It appears that judgment was rendered in favor of appellants here before the justice whereupon plaintiff (respondent here) appealed to the circuit court, where, upon a trial before the court on the attachment and on the merits, both being tried together by the court by agreement of parties, judgment went for respondent (the plaintiff)--the finding being in his favor on the plea in abatement of the attachment and also on the merits--judgment going in favor of plaintiff for $ 92.93. From this defendants below have appealed.
As the learned and very frank counsel for respondent says in his brief on file that he "is ready to admit if this cause of action is to be treated strictly as an attachment suit, then this cause should be reversed and remanded," it is not necessary to take any further notice of that branch of the case. We also agree with counsel as to the attachment, for the reason that a reading of the testimony in the case fails to sustain the claims on which the attachment must rest, and we are of opinion that the court erred in finding that issue for the respondent.
We think, however, that the affidavit for attachment filed with the justice embraced a substantial statement of a demand against defendants below--that demand being clearly set out as founded on what is claimed to be a judgment and being for the amount of it and for accrued interest and costs.
We further think that the defendants, by their appearance before the justice waived any right to challenge the jurisdiction of the justice over them.
The real and substantial point, however, on which this case must turn is on the force of the judgment of the justice. That judgment and its assignment to plaintiff is the very foundation of this action. As has been shown by the foregoing statement, it is a judgment against two of the parties defendant, in a suit against them and a third party--the third party not served with summons. The...
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