Donnell v. Byern

• Citation: 80 Mo. 332
• Parties: DONNELL et al. v. BYERN et al., Appellants.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 332

DONNELL et al.

v.BYERN et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moniteau Circuit Court.--HON. E. L. EDWARDS, Judge

AFFIRMED.

Moore & Williams for appellant.

The court erred in admitting in evidence the pretended attachment writ. R. S., § 448; Holliday v. Cooper, 3 Mo. 286; Bobb v. Graham, 4 Mo. 222; Hardin v. Lee, 51 Mo. 241; Dunham v. Heaton, 28 Ill. 264; Drake on Attach., (3 Ed.) § 184; 1 Tidd's Prac., 161; Bouvier Law Dic., title “Writ.” The court also committed error in permitting the certified copy of the deposition of H. E. Byern to be read to the jury. 1 Greenleaf Ev., §§ 163 to 166; Bergau v. People, 17 Ill. 426; Wilbur v. Seldon, 6 Conn. 162; Powellv. Waters, 17 Johns. 176; People v. Newman, 5 Hill 295; Morris v. Hammerle, 40 Mo. 489; Jaccard v. Anderson, 37 Mo. 91; Finney v. St Charles College, 13 Mo. 265.

Draffen & Williams for respondent.

The writ of attachment was admissible in evidence. 1 Wag. Stat., p. 184, §§ 13, 16. The certified copy from the Supreme Court of the deposition of H. E. Byern was also rightly admitted in evidence. Finney v. St. Charles College, 13 Mo. 266; Brunn v. Wood, 19 Mo. 475. Weeks on Depositions, § 462.

I.

SHERWOOD, J.

This cause has been here on a former occasion, and is reported in 69 Mo. 464. The error for which the judgment was then reversed has been cured by giving the sixth instruction asked by the defendants. The controlling question in this case, of course, is whether the mortgage was fraudulent as to the furniture and fixtures. On this point the evidence was the same as before, and the question of fraud or no fraud has been passed upon by two juries and two circuit judges, and the same result reached in each instance. The questions arising on the last trial were presented to the jury in a very satisfactory manner by the instructions on the part of all the parties litigant. And the evidence as to fraud under our repeated rulings, warranted the court in adopting as it did the finding of the jury. Hopkins v. Sievert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 80; Massey v. Young, 73 Mo. 260. We pass now to the discussion of two points on which the defendants lay great stress for a reversal, and will discuss them briefly in the following paragraphs:

II.

The transcript from the Tipton common pleas court did establish that plaintiffs, Donnell and Tilden, were attaching creditors. Their suit was commenced by summons, and the defendants in that suit, Byern and Moller, were personally served with process. Afterwards and on the first day of the term at which the summons was made returnable, the writ of attachment was sued out. The only points of irregularity which can be urged against the issuance of this writ is that it was issued in term time, and without the order of the court, and that it is made returnable to “no court, to no day, and to no term.”

The statute provides that where the action is begun in the ordinary way, that “the plaintiff * * may at any time pending the suit, and before final judgment, sue out an attachment in such action, on filing an affidavit and bond, as required in cases of original attachment.” R. S. 1879, § 410. And the statute further provides in such cases that where the defendants have been previously summoned, the clause of summons shall be omitted. Ib., § 418. Such being the statute law, and the defendants having been brought into court on process regularly issued in the ordinary way, we need not, perhaps, discuss the point whether a writ returnable to a dies non is void or not.

This court, in repeated instances, has held that “proceedings which are amendable are not void.” Hardin v. Lee, 51 Mo. 241. And the liberal scope of amendments in such proceedings authorized by statute was recognized in this state many years ago. Henderson v. Drace, 30 Mo. 358. And obviously enough the status of a cause where a defendant is already in court by service properly had, must differ widely from one where proper process has not been issued. The only object of the attachment pendente lite was to seize on a certain res and hold it in the grasp of the court to await the recovery of judgment in a suit then pending. Where this is the case, where a defendant is personally served with process or voluntarily appears to the action, the proceedings, however defective the affidavit, or writ, will be valid, and the rights acquired thereby will not depend upon the attachment for their validity, but upon the judgment, which will bind not only the attached ...