Garrett v. Greenwell

Citation92 Mo. 120,4 S.W. 441
PartiesGARRETT v. GREENWELL, Adm'r, etc.
Decision Date16 May 1887
CourtUnited States State Supreme Court of Missouri

John M. Barker, for appellant. E. M. Hughes and T. J. Powell, for respondent.

SHERWOOD, J.

There are two counts in the petition. The first charges that Jolioh, willfully, maliciously, and wantonly intending to injure the plaintiff, set fire to and burned the plaintiff's property, a threshing-machine, belt, and separator, of the value, etc. The second count was of similar purport, double damages being asked under the provisions of section 3928, Rev. St an affidavit and bond being filed with the petition, in conformity with that section, and the provisions of the attachment law. Jolioh having died, his administrator was made party defendant, and on his plea in abatement a trial of the issue thus raised was had, resulting in a verdict for the plaintiff, which was followed by the statutory judgment sustaining the attachment. Thereupon the defendant administrator filed a general denial, and at the next term on the issue thus presented the verdict was for the defendant, and judgment accordingly.

1. There was no error in the trial court's refusing to permit the plaintiff to offer in evidence the record of the proceedings in the trial of the plea of abatement. The correctness of this ruling is apparent for several reasons: A judgment, in order to be a bar to further litigation, must not have been rendered on some mere preliminary ground; as, ex. gri. upon a plea in abatement or the like. The case must have gone to a full and complete termination, so that nothing is left unsettled as to the rights of the parties litigant, or the extent of those rights. In a word, the judgment must have been final, and rendered on all the merits of the cause. Bigelow, Estop. (3d Ed.) 29, 32, 33; Freem. Judgm. (3d Ed.) § 260. This, as will be seen from the authorities, is elementary law. Here, as will readily be noted, the judgment was not final, — not on the merits of the cause. That cause was not terminated. There had been no adjustment of the rights of the parties; nor the extent of those rights. This is conspicuous on the face of the record, and becomes more conspicuous when the statute law respecting attachment proceedings is examined.

Section 439 of the attachment act provides that, if the issue on the plea in abatement be found for the plaintiffs, "judgment shall be rendered against the defendant sustaining the attachment, * * * and the cause shall proceed; but, if such issue be found for the defendant, the...

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49 cases
  • In re Lankford's Estate
    • United States
    • United States State Supreme Court of Missouri
    • July 16, 1917
    ...... years ago, at which time he went to the state of Colorado, took up his residence there, went into business in partnership with his brother, Garrett Lankford, and made Colorado his home. This partnership continued until about 7 or 8 years ago, when it was dissolved. Since that time James D. ...Hutchinson, 69 Mo. 429; Wilson v. Albert, 89 Mo. 544, 1 S. W. 209; May v. Crawford, 150 Mo. loc. cit. 528, 51 S. W. 693; Garrett v. Greenwell, 92 Mo. 125, 4 S. W. 441; Robbins v. Phillips, 68 Mo. 100; Whitsett v. Ransom, 79 Mo. 258; Hartt v. Leavenworth, 11 Mo. 629; Hubbard v. Fuchs, 164 ......
  • State v. Levy
    • United States
    • United States State Supreme Court of Idaho
    • January 21, 1904
    ......Railroad. Co., 87 Mo. 74; Whitsett v. Ranson, 79 Mo. 258;. Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 441; State v. Mansfield, 41 Mo. 470;. State v. Daubert, 42 Mo. 239; State v. Brosius, 39 Mo. 534; State ......
  • Weaver v. Mobile & Ohio Railroad Co., 32140.
    • United States
    • United States State Supreme Court of Missouri
    • November 16, 1938
    ......Ransom, 79 Mo. 258; Jones v. St. Louis-San Francisco Ry. Co., 287 Mo. 64, 228 S.W. 780; Schreiber v. Andrews (Mo. App.), 234 S.W. 862; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. 441. .         [3] But we do not think this is a case where the respondent's evidence is so unbelievable as ......
  • Devine v. Kroger Grocery & Baking Co.
    • United States
    • United States State Supreme Court of Missouri
    • May 5, 1942
    ......Mobile & Ohio Railroad Co., 120 S.W. (2d) 1105; Whitsett v. Ransom, 79 Mo. 258; Jones v. St. L.-San F. Ry. Co., 287 Mo. 64, 228 S.W. 780; Garrett v. Greenwell, 92 Mo. 120, 4 S.W. (2d) 441; Sensenderfer v. Smith, 66 Mo. 80; White v. Amer. Life & Accident Ins. Co. of St. Louis, 90 S.W. (2d) 118; ......
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