Ellington v. Moore

Citation17 Mo. 424
PartiesELLINGTON, Respondent, v. MOORE, Appellant.
Decision Date31 January 1853
CourtUnited States State Supreme Court of Missouri

1. The mere fact that a creditor is temporarily absent from the county of his residence, leaving no white person of his family over the age of fifteen years at his usual place of abode, will not authorize an attachment against his property. (Kingsland v. Worsham & Robinson, 15 Mo. Rep. affirmed.)

2. The term “family,” as used in the act regulating the service of process, is not confined to persons under the control, or in the employ of the defendant. Thus, if a son takes his widowed mother to reside with him, she is a member of his family, within the meaning of the statute.

Appeal from Chariton Circuit Court.

Abell & Stringfellow, for appellant. 1. A mere temporary absence from the usual place of abode, although during such absence, no white member of the family be present, does not authorize an attachment. 2. It is not necessary that a person should be in the employ or under the control of another, to constitute such person a member of the family of such other. A father or brother may be a member of the family of a son or brother, within the meaning of the statute, although the latter may neither employ or control the former. See Johnson's and Webster's definitions of the term “family.”

Clark, for respondent.

GAMBLE, Judge, delivered the opinion of the court.

Ellington sued out an attachment against Moore, alleging in the affidavit filed with the petition, that Moore had absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law could not be served upon him; and also, that he was about to move his property out of this state, so as to delay, hinder or defraud his creditors. The writ was served by attaching the effects of Moore, and by personally summoning him to answer the action. At the return term, he filed a plea under the statute, denying the facts stated in the affidavit. Upon this plea two issues were made: First, whether the defendant had absconded or absented himself from his usual place of abode, so that the ordinary process of law could not be served upon him; second, whether he was about to remove his property from the state, with intent to delay, hinder or defraud his creditors. After the evidence was closed, the plaintiff asked the following instructions:

1. If the jury believe from the evidence that, at the time the attachment issued, Moore was absent from the county of Chariton, and that there was no white person of his family then at his usual place of abode in said county, over the age of fifteen years, they ought to find the first issue for the plaintiff.

2. That, in order to enable the sheriff of Chariton county to serve the ordinary process of law on the defendant, Moore, the jury must believe from the evidence that, at the time the writ was issued, Moore, the defendant, was in the county of Chariton, or had in said county a usual place of abode, at which there was some white person of his family above the age of fifteen years.

3. That if the jury believe from the evidence, that the defendant, at the time the writ was issued, was about to remove his property or effects out of this state, with intent to hinder, delay or defraud his creditors in the collection of their debts, then they ought to find the second issue for the plaintiff.

4. If the jury find from the evidence, that W. J. Moore, at the time the writ of attachment was issued, was about to remove his property or effects out of the state with intent to hinder his creditors in the collection of their debts, then they ought to find the second issue for the plaintiff.

5. If the jury find from the evidence that, at the time the writ issued, the defendant, Moore, was about to remove his property or effects out of this state, with intent to delay his creditors in the collection of their debts, then they ought, on the second issue, to find their verdict for the plaintiff.

6. That, although white persons, over the age of fifteen years, may have been living at the usual place of abode in this state, of defendant, yet, if the jury believe also that such white persons were not in the employ of said Moore, they must find for plaintiff, unless they also believe that said Moore had not, at the date of the affidavit, absented himself from his usual place of abode in this state.

7. That, although the jury may believe that white persons, over the age of fifteen years, lived at the usual place of abode of defendant, in this state, yet the jury must not regard such persons as competent to be served with process in this case, unless they also believe from evidence, that Moore had such persons in his employ...

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17 cases
  • Brown v. Reichmann
    • United States
    • Missouri Court of Appeals
    • July 7, 1942
    ... ... Mo. 1939; Rosenthal v. Windensohler, ... 115 A. 237, 91 S.W. 432; Tiller v. Abernathy, 37 Mo ... 196; Mertin v. Barrett, 204 S.W. 410; Ellington ... v. Moore, 17 Mo. 424; C. B. Coles etc. Co. v ... Blythe, 69 N. J. L. 203, 54 A. 240. (a) The contract ... sued on provided for and ... ...
  • Ex Parte Berkley
    • United States
    • Missouri Supreme Court
    • May 13, 1932
    ...may be served upon a member of the family. The definition of a family for the purpose of this statute includes a party's mother; Ellington v. Moore, 17 Mo. 424; a sister, Way v. Jones, 20 Mo. 75; a servant, L.J. Mueller Furnace Co. v. Dreibelbis, 229 S.W. 240. Service upon one administratri......
  • Brown v. Reichman, 26003.
    • United States
    • Missouri Court of Appeals
    • July 7, 1942
    ...Mo. 1939; Rosenthal v. Windensohler, 115 A. 237, 91 S.W. 432; Tiller v. Abernathy, 37 Mo. 196; Mertin v. Barrett, 204 S.W. 410; Ellington v. Moore, 17 Mo. 424; C.B. Coles etc. Co. v. Blythe, 69 N.J.L. 203, 54 Atl. 240. (a) The contract sued on provided for and contemplated the performance b......
  • L. J. Mueller Furnace Co. v. Dreibelbis
    • United States
    • Missouri Court of Appeals
    • March 8, 1921
    ...Phrases, p. 2673; Schulenburg v. Bascom, 38 Mo. 189; Towner v. Remick, 19 Mo. App. loc. cit. 207; Dobbins v. Thompson, 4 Mo. 118; Ellington v. Moore, 17 Mo. 424, loc. cit. 427; Jarboe v. Jarboe, 106 Mo. App. 459, 79 S. W. 1162; Rosenberger v. Gibson, 165 Mo. 16, 65 S. W. 237; Laney v. Garbe......
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