Evans v. King

• Decision Date: 31 May 1842
• Parties: EVANS v. KING.
• Court: Missouri Supreme Court

7 Mo. 411

EVANS

v.KING.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

GEYER, for Appellant.

KING, for Appellee.

NAPTON, J.

This was an action of replevin brought by Evans against King, for a slave. The judgment of the Circuit Court was for the appellee, and the facts appearing on the trial were as follows: The administrator of W. B. King commenced an action by petition in debt against one Charles D. Burriss, on a note for $636.87, and upon his giving the necessary bond and taking the affidavit required by law, an attachment was issued on the 18th of February, 1839. On the 19th February, 1839, the sheriff attached the slave, about which the present suit was brought, and finding him in the possession of one James I. McClelland, he suffered him to remain in his possession, said McClelland having given bond as the law directed for the forthcoming of the property. The writ was not served upon Burriss. Afterwards, at the March term, 1839, the defendant appeared and moved to quash the attachment for reasons filed; which motion was overruled, and at the November term, 1839, a general judgment by nil dicit went against Burriss, and a general execution issued, by virtue of which the sheriff levied upon the slave in controversy, the same having been delivered up to him by said McClelland, and upon the 18th February, 1840, sold him to the appellee. It was proved on the part of Evans, that this slave was the property of Burriss on the 12th day of June, 1839, and that on that day Burriss sold and delivered the slave to one Dougherty; that in January, 1840, Dougherty sold and delivered said slave to Evans (the appellant), and that the appellant hired him to one Robbins, who took possession of the slave, and kept possession until in February, 1840, one McClelland came to his house, and without his knowledge or consent obtained possession of the slave, and delivered him to the sheriff as above stated.

The first question arising in this case is the validity of the judgment and execution. A general judgment is not authorized where there has been no appearance of the party, and the question then arises, whether a motion to quash the writ is such an appearance as will warrant a general judgment. In the case of Whiting and Williams v. Budd, 5 Mo. R. 444, this subject was fully considered, and a motion to dissolve the attachment was held to be such an appearance as authorized the same steps to be taken as if the party had been duly summoned. The case of Lutes and Dulany v. Perkins, 6 Mo. R. 59, has been quoted as conflicting with the views of the court in the former case. By reference to this last case, it will be found that this point was neither discussed at the bar nor considered by the court. The court merely held that as one of the defendants in that case had not been served with process, the Circuit Court erred in giving judgment against him, and the question of appearance was not raised at all. It is true, that this question is considered by the reporter as inferentially decided, because in the statement of the case by the judge, it is said that the defendants appeared and moved to dismiss; but I am satisfied that the record in that case would have shown, that only one defendant, the one who had been served with process appeared, and the word defendants is a clerical or...