Henderson v. Drace

• Decision Date: 31 July 1860
• Citation: 30 Mo. 358
• Parties: HENDERSON et al., Appellants, v. DRACE, Respondent.
• Court: Missouri Supreme Court

30 Mo. 358

HENDERSON et al., Appellants,

v.DRACE, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. The objections to a writ of attachment issued in aid of a suit, that the caption of the writ and affidavit does not correspond with the title of the suit; that the cause of action set forth in the petition is improperly described in the affidavit and writ, are waived by the filing of a plea in the nature of a plea in abatement.

2. No attachment should be dissolved on account of the insufficiency of the affidavit, if the plaintiff shall file a good and sufficient affidavit in such time and manner as the court may direct. (R. C. 1855, p. 254, § 53.)

3. If thebond filed by the plaintiff in an attachment suit be insufficient, he has a right to file another. (R. C. 1855, p. 242, § 9.)

4. An attachment issued on the 13th of August, the affidavit and bond, which were not dated, were certified by the clerk to have been acknowledged on the 18th of August. Held, that, although this was probably a clerical error, yet if the affidavit and bond were not formally filed until five days after the writ of attachment issued, this would not authorize the quashing of the writ.

Appeal from Dade Circuit Court

This was an action commenced February 26, 1856, in the Johnson circuit court, to recover damages for an alleged wrongful taking and carrying out of the state and conversion of a female slave belonging to the plaintiffs. The cause, as originally commenced, was entitled as follows: “Nancy E. Henderson, Lucinda N. Henderson, Georgia Ann Henderson, minors, by Joseph W. Henderson, curator of the estates of said minors, plaintiffs, v. Peter H. B. Drace, defendant.” Defendant appeared and answered. Afterwards on the 13th day of August, 1856, in vacation, a writ of attachment issued in the cause. In this writ of attachment, and also in the affidavit and bond, the cause is entitled as follows: “Lucinda M. Henderson, Georgia Ann Henderson, minors, by Joseph W. Henderson, curator of the estates of said minors, Nancy E. Houx and George Houx, plaintiffs, v. Peter H. B. Drace, defendant.” The jurat to the affidavit is as follows: “Subscribed and sworn to this 18th day of August, A. D. 1856. James McCown, clerk.” An alias writ of attachment issued August 18, 1856, directed to the sheriff of Jasper county. Under this writ the said sheriff levied upon certain property of the defendant. In the original affidavit the affiant alleges that plaintiffs have a just demand against defendant, after allowing credits, &c., in the sum of $1,050; that defendant is so indebted for damages, for which an action has been brought, for injuries from the commission of a felony or misdemeanor; and that he has good reason to believe and does believe that defendant is about to remove his property or effects out of the state with the intent to defraud and hinder and delay his creditors. At the May term, 1857, of the Henry circuit court, to which the cause had been taken by change of venue, the defendant Drace appeared and filed his plea in the nature of a plea in abatement, putting in issue the truth of the affidavit, and the cause was continued by consent. Afterwards, at the November term, 1857, of said court, the marriage of Nancy C. Henderson with George W. Houx was suggested and said Houx was made a party plaintiff. At the April term, 1860, of the Dade circuit court, to which the cause had been taken by change of venue, the defendant moved the court to quash the attachment for the following reasons: because no sufficient affidavit was filed as required by law before the issue of the writ of attachment; because no bond was filed before the issue of the writ of attachment; because the writ does not show any circumstances which authorized its issue by the clerk in vacation; because the cause of action set forth in the petition is not for damages occasioned by injuries arising from the commission of a felony or misdemeanor. This motion the court sustained, and released the property attached.

Johnson & Ballou, for appellants.

I. The circuit court erred in not permitting plaintiffs to amend the writs of attachment, if they were invalid upon the ground alleged in the defendant's motion to quash, “that it does not appear that said attachments were issued in aid of the original suit.” (17 Mo. 405.) The law was complied with. The writs were entitled in the cause so far as it could be done in the case. Nancy C. Henderson, the wife of George W. Houx, had been married to him since the last continuance, and it was proper he should have been introduced in the proceedings as a party, or it might have been error. The affidavit for the attachment shows that it was in aid of the original suit. The original petition was attached to the writs. There is no pretence that there was any other petition filed. (R. C. 1855, p. 242.) The court should have allowed the writs to be amended. (R. C. 1855, p. 257, § 64, p. 1253; 19 Mo. 141.) The affidavit is sufficient. (R. C. 1855, p. 123.) The objection that there was no bond filed before the issue of the writs of attachment is no ground for quashing the writs, and if it was upon this ground that the writs were quashed, it is manifest error, as plaintiff offered to give a good bond, and in fact offered one before defendant's motion to quash was sustained. The bond filed was sufficient. (7 Mo. 458; 16 Mo. 258; 2 Scam. 473; 1 Scam. 551; 9 Mo. 397.) The filing of the bond with the clerk is prima facie evidence that he has approved it. (7 Blackf. 558, 536.) The question in this case is not whether this is a bond or not, but whether it shall be considered a sufficient paper or instrument of writing to allow the plaintiff to file another upon the ground that it is not sufficient.

Edwards & Ewing, for respondent.

I. The court did right in sustaining defendant's motion to quash the writ of attachment. The bond was void. The law requires the affidavit and bond to be filed in all cases before the writ issues, in original as well as attachments in aid. (R. C. 1855, p. 241, § 5, 8, 13.) On the 13th of August, 1856, the writ was sued out, and on the 18th of the same month, five days thereafter, the affidavit and bond were filed. This of itself would be sufficient to quash the writ. If the writ can be issued five days before the bond and affidavit are filed, what obligation is there on a plaintiff to file a bond at all until forced by motion of the adverse party and an order of the court? Even then he is not bound to file it; and if he is insolvent and can not give a good bond, and in the mean time the defendant should be largely damaged, what remedy has he? Merely because the plaintiff in this case proposed to give a good bond is no excuse for the failure to do so in the first instance. If property can be attached and parties perhaps subject to heavy damage in one case, they can in another; and to have permitted the plaintiffs to file a new bond, or to sue out the writ before the bond was filed, would be...