Donnell v. Stephens

• Decision Date: 28 February 1865
• Parties: ROBERT W. DONNELL, Plaintiff in Error, v. SERIAH STEPHENS, Defendant in Error.
• Court: Missouri Supreme Court

35 Mo. 441

ROBERT W. DONNELL, Plaintiff in Error,

v.SERIAH STEPHENS, Defendant in Error.

Supreme Court of Missouri.

February Term, 1865.

Error to De Kalb Circuit Court.

Moore, Vories & Vories, for plaintiff.

We are aware that almost the very question presented by the record in this case has been before and passed upon by this court since this case was brought to this court; but as we think the principle involved in this case is somewhat different from the one decided, and as we think, under what seems to be the ruling of the court in the case referred to, (if said ruling should govern this case) the hardship and injustice done the plaintiff would be apparent, and in conflict with what seems to us to be the clear intention of the Legislature in such cases. We do not hesitate to present this case for the adjudication of this court.

In the case before the court, plaintiff relies upon the law of the Legislature passed for the protection of landlords, which protection also enables poor persons to procure lands. The defendant relies on the different acts of the Legislature passed for the relief of persons while in the military service, & c., approved respectively on the 15th day of May, 1861, and on 17th March, 1863.

The plaintiff insists that these several laws must be so construed, if possible, as to protect all parties, and to give effect, as far as possible, to each act of the Legislature. It has been decided by this court, that where the law provides that unless a party should file a bond for costs under certain circumstances, his suit should be dismissed; that in such cases the law was only directory, and that the court was not to dismiss the suit unless the bond was filed after the hour named. (Brown v. Ravenscroft, 1 Mo. 399.)

In this case the object of the Legislature would have been more certainly carried out, by continuing the case until after the defendant's term of service had expired, thus giving effect to each of the laws before referred to, and protecting all parties concerned. It is submitted that to give the law any other construction, would be not to regulate the remedy of plaintiff in his course of action, but to destroy all remedy; and the law, if so construed, would evidently be unconstitutional and void.

BAY, Judge, delivered the opinion of the court.

This was a suit by a landlord against his tenant to recover a year's rent of the demised premises, and was brought by attachment under the provisions of the general act relating to landlords and tenants. At the return term the defendant appeared and moved the court to dismiss the suit, upon the ground that at the time of the institution thereof, he was a citizen of this State, and engaged in the military service of the United States, and is still so engaged. Upon due proof being made thereof, the court sustained the motion and dismissed the suit, whereupon the plaintiff excepted and appealed.

The only question therefore is, whether the court below erred in dismissing the suit. The Legislature of this State have, upon many occasions, passed acts for the protection of persons engaged in the military service of the country, and as far back as 1847 we find an act prevailing that on process issued the person or property of any volunteer of this State, engaged as such in any regiment or company of Missouri volunteers, and absent from the State on such service, shall be suspended until the return of such regiment or company; and that all suits to which any volunteer as aforesaid may be a party defendant shall stand continued until the return of the regiment or company to which he ...