Hoppe v. Stone

• Citation: 39 Mo. 378
• Parties: WILLIAM HOPPE, Defendant in Error, v. DEWITTE C. STONE, Plaintiff in Error.
• Decision Date: 31 January 1867
• Court: United States State Supreme Court of Missouri

39 Mo. 378

WILLIAM HOPPE, Defendant in Error,

v.DEWITTE C. STONE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Henry County Circuit Court.

In April, 1862, plaintiff instituted suit in the Henry Circuit Court against defendant. The petition was as follows:

“Plaintiff states that the defendant owes him $41.70 for work done and materials furnished by plaintiff for defendant at his request, and for goods sold said defendant. Plaintiff further states that defendant owes him $258.90 for materials, tools and articles taken and work demanded and required to be rendered of plaintiff by defendant, and by persons and men under the defendant's command and governed by his directions, whereby plaintiff was greatly damaged. The articles, items and particulars of all which will appear more clearly by an account herewith filed and made a part of the petition. Plaintiff asks judgment, &c.”

An account was filed with the petition. There was no affidavit annexed to this account and statement, nor was there any evidence that the same was ever served. A summons issued April 18, 1862, returnable to May term. Service was made April 23d, by leaving a copy of the petition and writ at defendant's usual place of abode. On 30th December, 1863, plaintiff sued out an attachment.

Wright, Burge, and Phillips, for plaintiff in error.

The court should have sustained defendant's motion to set aside the judgment for irregularity. It is irregular in several particulars. 1. It is a judgment by default after appearance and demurrer; it should have been upon the demurrer, or by nil dicit. 2. The attachment was unauthorized by law and a nullity, and therefore it was irregular to render a judgment that special execution issue against the attached property. The judgment should have been general, as if the pretended attachment had not issued--R. C. 1855, p. 250, § 42, and p. 256, § 61.

HOLMES, Judge, delivered the opinion of the court.

This suit was commenced by summons duly served on the defendant. Pending the suit an attachment was sued out, upon an affidavit and bond being filed. A motion having been made to quash the attachment for the insufficiency of the affidavit and bond, the plaintiff had leave to file a new affidavit and bond, and the cause proceeded. The defendant appeared and demurred to the petition for a misjoinder of causes of action, and his demurrer was overruled. The defendant failing to file an answer, there was a default and an inquiry of damages, and a final judgment was rendered against him for the amount of the plaintiff's demand. The judgment was both special and general, and a special fieri facias was sued out, and...