Hughesville Mercantile Company v. McGruder
| Decision Date | 29 June 1908 |
| Citation | 111 S.W. 1179,132 Mo.App. 387 |
| Parties | HUGHESVILLE MERCANTILE COMPANY, Appellant, v. GILLISPIE McGRUDER et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. Nick M. Bradley, Judge.
AFFIRMED.
Judgment affirmed.
Bente & Wilson for appellant.
(1) When the return of the constable on the execution issued showed that none of the property attached could be found it was his duty to assign the bond to the plaintiff, which he did. R. S. 1899, sec. 419; State ex rel. v. Immer, 52 Mo.App. 536; Jones v. Jones, 38 Mo. 429; Hubbard v. Moss, 65 Mo. 657; Hoshaw v Gullett, 53 Mo. 209; Weed v. Dells, 34 Mo. 428. (2) The property was not produced in obedience to the judgment and order of the justice and the bonds was duly assigned to plaintiff by the constable, plaintiff then had the right to proceed against the defendants by motion for judgment on said bond. R. S. 1899, sec. 419, 420; McDowell & Co. v. Morgan, 33 Mo. 550. (3) The forthcoming bond was given in this cause is in due statutory form. Hoshaw v. Gullett, 53 Mo. 208; Newton v Cox, 76 Mo. 352. (4) The defendants had the benefits of said bond, they must now bear its burdens. State to use v Hesselmeyer, 34 Mo. 76.
Mark McGruder and Sangree & Bohling for respondent.
(1) The action of the lower court should be sustained for the reason that the forthcoming bond is not a statutory bond and no judgment could be rendered thereon in a summary way on a motion. A forthcoming bond should be given to the officer executing the writ, his successor and their assigns. R. S. 1899, sec. 389. (2) The action of the lower court should be sustained because it does not appear from the motion for a judgment on the forthcoming bond that the bond had been assigned by the constable to the plaintiff prior to the filing of the motion. Nor does it appear from the justice record that the justice ever directed the constable to assign the bond to the plaintiff. Nor does the value of the property attached appear anywhere in the motion. McDowell v. Morgan, 33 Mo. 555; R. S. 1899, sec. 419; Jones v. Jones, 38 Mo. 429.
This is an appeal from a judgment of the court overruling plaintiff's motion for judgment on a forthcoming bond. The plaintiff commenced this suit before a justice of the peace on a promissory note executed by defendants Gillispie McGruder and his wife Annie McGruder, and sued out a writ of attachment against the property of defendants. It was alleged by plaintiff that the consideration for the execution of the note was for necessaries for the defendant's family. The case was taken by change of venue to another justice and had a somewhat varied career, but finally resulted in a judgment sustaining the attachment, and a judgment on the note.
When the constable seized the property of the defendants they retained its possession by giving a forthcoming bond. During the pendency of the proceedings, the defendant Annie McGruder filed a motion to quash the attachment in so far as it pertained to her property, which was sustained. And defendant Coats as surety on the forthcoming bond filed a motion before a justice to be released from the forthcoming bond in so far as the property of defendant Annie was concerned, which was also sustained by the justice. And on the same day the justice rendered judgment on the forthcoming bond against the defendants Gillispie and Annie McGruder and defendant Coats for the sum of $ 250, and twenty per cent damages in the sum of $ 50. It was from this judgment that the defendant Annie and Coats appealed, the defendant Gillispie not appealing. We shall not attempt to detail the numerous steps and counter steps taken by the parties while the case was pending before the justice, but endeavor to...
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