Jump v. McClurg

• Decision Date: 31 July 1864
• Citation: 35 Mo. 193
• Parties: JOHN JUMP, Defendant in Error, v. Jos. W. MCCLURG et al., ATTACHING CREDITORS OF JAMES BATTON AND WM. H. BATTON, Plaintiffs in Error.
• Court: Missouri Supreme Court

35 Mo. 193

JOHN JUMP, Defendant in Error,

v.Jos. W. MCCLURG et al., ATTACHING CREDITORS OF JAMES BATTON AND WM. H. BATTON, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1864.

Error to Polk Circuit Court.

On the 14th of July, 1862, John Jump filed with the clerk of the Circuit Court of Polk county, his petition, affidavit and bond, and obtained a writ of attachment against James Batton and William H. Batton, for the sum of $808.35; and the sheriff of said county executed said writ by attaching certain lands of the Battons, on the same day said writ was issued, and an order of publication was obtained after the sheriff had certified that they were not to be found in the county, and upon the oath of the plaintiff that they were non-residents of the State.

At a regular term of the Polk Circuit Court held in October, 1863, and before John Jump had obtained judgment, Joseph W. McClurg, William D. Murphy, Marshall W. Johnson, Hervey Massey, Henrietta E. Jones, and E. D. Torbert, plaintiffs in error in this cause, filed in said Circuit Court the necessary petition, affidavit and bond, and obtained a writ of attachment for the sum of twenty-seven hundred and fifty-three dollars and nineteen cents, with interest and cost of suits against James Batton and William H. Batton; which writ was executed by said sheriff, by attaching the same lands attached heretofore under and by virtue of the writ obtained by the first mentioned plaintiff, John Jump, and an order of publication ordered on the same day. McClurg et al., the subsequent attaching creditors of James Batton and William H. Batton, by their attorney filed their motion asking the court to quash the first writ of attachment in favor of John Jump, because the writ was not under the seal of the court, and because the affidavit on which the writ was sued out is contradictory, inconsistent and repugnant in its allegations. Afterwards, on the 5th day of the term, (being the 23d day of October, 1863,) John Jump, by his attorney, filed a motion asking the court for leave to amend the writ, which motion was by the court sustained, and the clerk was ordered to attach the seal of said court to the writ of attachment. On the same day, the court overruled the motion filed by McClurg et al. to quash the writ of attachment in the case of Jump against Batton.

On the eighth day of said term, the subsequent attaching creditors asked leave to file a plea in abatement, which was refused; and on the same day the court rendered judgment by default in favor of Jump, on the petition filed July 14, 1862, and ordered that the real estate attached be sold under a special execution. Afterwards, at the same term, the subsequent attaching creditors, by leave of the court, filed their motion to arrest the judgment rendered in this cause; which motion was overruled by the court. Whereupon the plaintiffs in error filed their bill of exceptionsLindenbower, and Sherwood, and Orr, for plaintiffs in error.

The writ of attachment issued on the 14th July, 1862, in the case of John Jump against James and William H. Batton, was void, because the affidavit upon which said writ was issued was not such as to authorize the clerk to issue said writ. (R. C. 1855, p. 238.) The writ was null and void, because the clerk failed to put the seal of the court to said writ. (R. C. 1855, p. 1586; see Bouv. Law Dict. p. 503.) The plaintiffs in error had the legal right to file a plea in abatement, or make any defence the defendants could have made. (R. C. 1855, p. 256, § 59.) Every defendant not served with a summons, may at any time before final judgment appear and plead. (R. C. 1855, p. 253, § 52; page 257, § 64.) It is clear the court did not consider the writ good without the seal, or it would not have ordered it placed there on motion. If it was invalid until the seal was attached, then McClurg's lien had attached.

The plea in abatement, referred to in 33 Mo. p. 315, was offered to be filed by the defendant, and not by a subsequent attaching creditor. The court should have permitted the allegations to be tried. The cause of action alleged by McClurg and others, might exist in 1863 and be false in 1862.

E. B. Ewing, for defendant in error.

Leave to file plea in abatement was properly refused; it was offered too late. (Attachments, R. C. 1855, § 23, p. 246; § 64, p. 257; R. C. 1855, p. 1230, § 5; Hamilton v. McClelland, 33 Mo. 315.) Besides, the plea in abatement put in issue one of the grounds alleged by McClurg, etc., in their own affidavit for an attachment. It is in the discretion of the court to permit attaching creditors to appear and defend; and they, when allowed to plead, are restricted both as to the character of the defences and the time of making them, in the same manner that defendant would be if he had appeared. (R. C. 1855, § 59, p. 256.)

The court having jurisdiction of the subject, and the proper foundation having been laid for the attachment, the writ gave the sheriff authority to act, although no seal was affixed; and the levy under it was valid. The use of a seal is only to authenticate the process; and as the Circuit Court was satisfied of the genuineness of the writ, that it was...