Gilkeson v. Knight

• Citation: 71 Mo. 403
• Parties: GILKESON v. KNIGHT et al., Plaintiffs in Error.
• Decision Date: 30 April 1880
• Court: United States State Supreme Court of Missouri

71 Mo. 403

GILKESON

v.KNIGHT et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Johnson Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

The affidavit to the petition was as follows: “Plaintiff makes oath and says the above petition and the matters therein as stated, he believes to be true.

A. R. CONKLIN.”

Samuel P. Sparks for plaintiff in error.

1. The sheriff's deed conveyed no title, because the attachment proceedings were null and void; and this, ( a) because the petition showed upon its face that it was not verified by plaintiff, nor by his agent or attorney, as required by the practice act then in force. R. S. 1855, p. 1234, § 20; p. 240, § 5; Story on Agency, (7 Ed.) § 147; Stackpole v. Arnold, 11 Mass. 27; Bedford Ins. Co. v. Covell, 8 Met. 442; Wood v. Goodridge, 6 Cush. 120; Pentz v. Stanton, 10 Wend. 277; Ex Parte, The Bank of Monroe, 7 Hill (N. Y.) 177; ( b) because the affidavit for attachment was not made by the plaintiff or any one for him. R. S. 1855, p. 240, § 6; Drake on Attach., §§ 89, 93, 94, (5 Ed. 1878;) Willis v. Lyman, 22 Texas 268; Manley v. Headley, 10 Kas. 88; Hardin v. Lee, 51 Mo. 241; Freeman v. Thompson, 53 Mo. 183, 194; Bray v. McClury, 55 Mo. 128; Staples v. Fairchild, 3 N. Y. 41.

2. The affiant, Conklin, does not disclose his means of knowing the facts he swears to in the affidavit for attachment. Eldridge v. Steamboat, 27 Mo. 595; Ex Parte Bank of Monroe, 7 Hill 177.

3. Plaintiff is estopped to claim under the deed of April 23rd, 1867. Langsdorf v. Field, 36 Mo. 440; s. c., 43 Mo. 32.

John J. Cockrell for respondent.

NORTON, J.

This is a suit in ejectment to recover the possession of certain lands in Johnson county. The answer is a general denial. On the trial plaintiff obtained judgment, and defendant brings the case before us by a writ of error. Both parties claim through J. W. Brockman, as the common source of title.

Plaintiff, in support of his claim, offers in evidence a deed from the sheriff of Johnson county, executed on the 23rd day of April, 1867, conveying the title of said Brockman to plaintiff in the land in controversy. The deed recites that the sale was made in virtue of certain special executions which were issued on certain judgments rendered by the circuit court of Johnson county on the 21st day of April, 1866, in an attachment suit commenced in said court by A. H. Gilkeson, the present plaintiff, and Shanklin Gilkeson, against said Brockman, on the 30th day of January, 1866, and that the writ of attachment which issued in said cause was levied on the 31st day of January, 1866. This deed was admitted in evidence against the objection of defendant, and the action of the court in that respect is assigned for error. It is insisted by counsel that the proceedings in the said attachment suit, which culminated in a special judgment against the property levied upon by the writ of attachment and a sale thereof by the sheriff to plaintiff, were void, first, because the petition was not verified by the affidavit of plaintiff, and second, because the affidavit for the attachment was not made either by plaintiff or some person for him.

1. IRREGULARITY OF PROCEDURE NOT COLLATERALLY QUESTIONABLE: deed.

As to the first ground it may be observed that the petition was signed by A. R. Cocklin, “attorney for plaintiff,” and the affidavit attached thereto was signed and sworn to by A. R. Conklin. Conceding that it may be true, as counsel contend, that the verification of the petition was not in strict conformity with the statute, it amounts to nothing more than an irregularity, and is not subject to collateral attack, any more than a judgment rendered on a petition would be, which stated a cause of action but stated it defectively, and that this cannot be done has been repeatedly held.

2. AFFIDAVIT FOR ATTACHMENT HELD REGULAR.

The affidavit for the attachment accompanying the petition states every fact necessary to authorize the issuance of a writ of attachment. It states that plaintiff has a just demand against defendant, now due, and the amount which plaintiff ought to recover after the allowance of all just credits and set-offs, and that affiant has good reason to believe and does believe that defendant is a non-resident of the State. But it is contended that the affidavit being subscribed and sworn to by A. R. Conklin, does not show on its face th t it was made either by plaintiff or by Conklin for plaintiff. It is true that the affidavit does not show on its face that it was made by plaintiff, but it does show that it was made by A. R. Conklin, and that it was made by him for plaintiff, we think is sufficiently shown from the whole record, the...