Haywood v. Russell
| Decision Date | 31 July 1869 |
| Parties | HAYWOOD, CARR et al., Respondents, v. A. H. RUSSELL et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Third District Court.
Phillips & Vest, with McLean & Shick, for appellants.
T. A. Sherwood, for respondents.
Plaintiffs attached certain real estate of defendant Russell, by process from the Circuit Court of Benton county, obtained judgment by default, issued special fi. fa., and sold the property. The ground of the attachment was non-residence, and no personal service was had. After judgment, defendant appeared and moved to set it aside for irregularity in the notice and other reasons.
The statute of 1855, under which these proceedings were instituted, required that the notice should state the “nature and amount of the plaintiff's demand.” The notice in question states that the proceedings were “founded on two promissory notes for the sum of $386.94.” Is this a statement of the nature and amount of the demand?
A very liberal interpretation has been given to the statute, so far as it requires a statement of the nature of the demand. In Sloan v. Forse, 11 Mo. 126, it was held to be a sufficient statement if the action was described as ““an action of assumpsit.” Regarding that case as authority, surely a description of the claim as “founded on two promissory notes” may be regarded as giving with sufficient certainty the nature of the demand.
With regard to the amount of the demand there is more uncertainty. The original amount of the notes was probably $386.94, but what is due upon them nowhere appears; nor does the notice give any data from which the amount can be computed. Defendants may be owing ten, or a hundred, or a thousand dollars, for anything that appears in the notice, and a default was actually taken for $516. The object of the notice is to advise the defendant and all others interested of the general character of the claim, and especially of the amount claimed. that they may decide whether to appear and defend, or let the property go to pay the debt. This notice is wholly uncertain upon a material point, and though the proceedings may not be void, they certainly can be reached in a direct proceeding like the present.
The objection to the time of publication is not well taken. The statute requires that notice should be published for four weeks, and that the last insertion should be at least four weeks before the commencement of the term. If the first...
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Walter v. Scofield
... ... Walter, conformed to the requirements of the statute, and was ... sufficient. R. S. 1889, sec. 581; Haywood v ... Russell, 44 Mo. 252; Young v. Downey, 150 Mo ... 317; State ex rel. v. Tucker, 32 Mo.App. 620; ... Burnes v. Burnes, 61 Mo.App ... ...
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City of Brunswick ex rel. Barkwell v. Beneke
...for the two consecutive weeks in the Brunswicker, viz., May 7 and 14, 1915, was a sufficient publication to satisfy the statute. Haywood v. Russell, 44 Mo. 254; Fleming Tatum, 232 Mo. 678; Ratliff v. Magee, 165 Mo. 465; Brown v. Howard, 264 Mo. 501; Young v. Downey, 150 Mo. 323; Russell v. ......
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Russell v. Croy
...in which it was held that the notice "was published in a weekly paper, for four consecutive numbers, which makes four weeks" ( Haywood v. Russell, 44 Mo. 252), was held not to in conflict with the view then taken of the statute then under consideration, for the very obvious reason that ther......
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