Jones v. Evans

• Decision Date: 31 October 1883
• Citation: 80 Mo. 565
• Parties: JONES, Appellant, v. EVANS.
• Court: Missouri Supreme Court

80 Mo. 565

JONES, Appellant,

v.EVANS.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Gentry Circuit Court.--HON. S. A. RICHARDSON, Judge.

AFFIRMED.

This was an appeal from a justice of the peace in Gentry county, to the circuit court. The amount of plaintiff's claim was $85. Shortly after the filing of the justice's transcript in the circuit court, the plaintiff sued out an attachment process on the following grounds: 1st, That plaintiff had good cause to believe that defendant was about to remove his property and effects out of the State, with intent to defraud, hinder and delay his creditors. 2nd, That defendant was about to remove out of this State with intent to change his domicile. At the September term, 1879, of the circuit court, being the term to which the appeal was taken and triable, and the writ of attachment was returnable, the defendant filed a plea in abatement, which was tried at said term by the court, sitting as a jury, and the issues found thereon for the plaintiff.

Thereafter, at the same term of the court, and on September 9th, 1879, and before the cause was called for trial on the merits, defendant filed a set-off for $83.50. Upon the same day a jury was empanneled to try the cause on its merits, and the same was begun, and pending said trial defendant withdrew his set-off, and also filed a motion for a new trial on the plea in abatement. After the conclusion of the trial on the merits, which resulted in a verdict and judgment for plaintiff in the sum of $4.50, and on September 15th, 1879, the court sustained defendant's motion for a new trial on the plea in abatement. On the 1st day of March, 1880, plaintiff filed an unsuccessful motion to strike from the record defendant's plea in abatement, and afterward, at the September term, 1880, of the court, the cause was called for a re-trial on the plea in abatement, and plaintiff declining to take any part therein, the court dissolved the attachment proceeding and adjudged against plaintiff all the costs of the same. The plaintiff filed motions for a re-hearing and in arrest of judgment, to the judgment of the court in dissolving the attachment, and the same being overruled, he filed at said September term, 1880, of the court, his bill of exceptions and appealed to this court.

B. F. Lucas for appellant.

The court below should have refused to grant a new trial on the plea in abatement, but having granted it after all matters in abatement of the attachment had been waived by a plea to and a trial on the merits, the plea in abatement should have been stricken from the record, and it was error to dismiss the attachment and adjudge the costs thereof against plaintiff.

George W. Lewis and Vinton Pike for respondent.

The appeal is not prosecuted from...