Harris v. Grodner

• Decision Date: 31 January 1868
• Citation: 42 Mo. 159
• Parties: D. P. HARRIS, Appellant, v. JESSE GRODNER, Respondent.
• Court: Missouri Supreme Court

42 Mo. 159

D. P. HARRIS, Appellant,

v.JESSE GRODNER, Respondent.

Supreme Court of Missouri.

January Term, 1868.

Appeal from Cedar Circuit Court.

T. A. Sherwood, for appellant.

I. The court should have rendered judgment by default. The order of publication was sufficient; it was a substantial compliance with the provisions of the statute. (See Loc. Acts 1855, p. 534; Appendix of Forms to R. C. 1855, p. 1638, No. 86.) The form used in this case has thus received legislative sanction. A party who brings suit by attachment is entitled to an order of publication immediately upon filing the necessary affidavit, etc. A clerk cannot officially know that a party's property “has been attached” until due return of the writ.

Lindenbower, for respondent.

I. The attachment law requires that the notice by publication shall give notice to the defendant “that his property has been attached.” The attachment law must be construed strictly; and an order of publication which gives notice to the defendant “that his property is about to be attached” is not a compliance with the requirements of the attachment law, and will not authorize a judgment. (Durossett's Adm'r v. Hale, 38 Mo. 346; Maples v. Tunis, 11 Hump. 108; Wilkie v. Jones, 1 Morris, 97; id. 456; Levy v. Millman, 7 Geo. 167; May v. Baker, 15 Ill. 89; Mills v. Findley, 14 Geo. 230; Edwards v. Toomer, 14 Sm. & M. 75; Vairin v. Edmonson, 5 Gilman, Ill., 270.) The form book attached to Revised Code of 1855 has not received legislative sanction. This has been so held by this court.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced on a promissory note, by the appellant against the respondent, in the Circuit Court of Cedar county. A bond and an affidavit for attachment were filed with the original petition, and the clerk of the said court issued an order of publication in vacation, in the form inserted in the appendix to the Revised Code of 1855. The order of publication notified the respondent that an action had been commenced against him by petition and attachment founded on a promissory note, and that his property “was about to be attached,” and required him, at the next term of the court, on or before a given day, to appear and answer or plead. The order of publication was duly published, as provided by statute. Upon the filing of the petition, a writ of attachment was issued to the sheriff, who levied the same on the respondent's land, and certified the fact thereon at the return term. At the succeeding term, at which the notice given by order of publication was made returnable, no appearance was made by the respondent, and the appellant announced himself ready for trial, and demanded a judgment by default, which judgment the court refused to give, because no sufficient notice had been given the respondent of the commencement of the suit, and gave the appellant leave to take an alias order of publication or other process, which he refused to take; whereupon the court dismissed the suit, and rendered judgment against him for costs. After an unsuccessful effort to have the order of dismissal set aside...