Graham v. Bradbury

• Decision Date: 30 September 1841
• Parties: J. & J. GRAHAM v. BRADBURY & SCHAEFFER.
• Court: Missouri Supreme Court

7 Mo. 281

J. & J. GRAHAM

v.BRADBURY & SCHAEFFER.

Supreme Court of Missouri.

September Term, 1841.

ERROR TO THE ST. LOUIS CIRCUIT COURT.

C. D. DRAKE, for Plaintiff. The reasons assigned by the defendant for quashing the attachment are: 1st. That the claims sued on are debts contracted out of this State, and the affidavit does not show that the debtors, or either of them, absconded or secretly removed their property or effects to this State with intent to defraud, defeat, hinder or delay their creditors, as required by the statute. 2nd. That the plaintiffs and defendants are both non-residents of the State of Missouri, and are both residents of the city of Cincinnati, in the State of Ohio, and as such the affidavit is insufficient, in merely alleging the non-residence of the defendants, to support an attachment in this State. As to the first reason. The reason is insufficient to quash the attachment, because the ground for obtaining the attachment, laid in the affidavit, is in itself sufficient, without requiring the plaintiffs to set forth also another ground, which the law recognizes as one upon which an attachment may properly issue. The plaintiffs, in their affidavit, allege the non-residence of the defendants, which is enough for an attachment to issue. The defendants seek to quash the attachment because the plaintiffs do not either go further, and swear that the defendants absconded from Ohio, or take a ground different from that which in the affidavit they saw fit to assume. This proposition by itself would be absurd, but it goes upon the assumption that the debts were contracted out of this State, of which the bill of exceptions shows there was no evidence. As to the second reason. Here also it is assumed that the plaintiffs are not residents of this State, and therefore cannot sustain an action by attachment against non-residents. There was no evidence of these facts before the court and even if there was, it is no reason why the attachment should be quashed, as one non-resident may sue another in this State. Posey v. Buckner, 3 Mo. R. 604.

SCOTT, J.

The plaintiffs in error sued the defendants in error by attachment, in October, 1839. The attachment was sued out on an affidavit, in which it was alleged that the defendants were not residents of nor residing in this State. The affidavit was made in the State of Ohio, and some nine or ten days before the writ issued. The bond for the attachment was executed in this State, and the note sued on is dated Cincinnati. On the return of the writ the defendants moved the court to quash it,...