Kritzer v. Smith

• Citation: 21 Mo. 296
• Parties: KRITZER, Defendant in Error, v. SMITH, Plaintiff in Error.
• Decision Date: 31 July 1855
• Court: United States State Supreme Court of Missouri

21 Mo. 296

KRITZER, Defendant in Error,

v.SMITH, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1855.

1. It is no ground of demurrer to a petition in an attachment suit upon a note before maturity, that it states the note to be “due,” or that it fails to refer to the law, or state the existence of the facts which authorize an attachment under such circumstances. It is sufficient that the affidavit sets forth facts which, under the statute, constitute a cause.

2. A defendant sued by attachment under the statute on a note not due, is not bound, it seems, to plead to the merits, until after the note is due.

3. A party's deposition, taken in a suit between different parties, may be read in evidence against him as an admission. But the rule is, that the whole deposition must be read; though a failure in this respect is no ground for the reversal of a judgment, where it can be seen that the party has not been prejudiced.

4. Where an affidavit for an attachment, upon a note not due, sets forth two causes which warrant an attachment in such a case, and one which does not, and issue is only taken upon the two which do, a general verdict for the plaintiff will sustain the suit.

5. The issue being, whether a party was “about fraudulently to conceal or dispose of his property or effects so as to hinder or delay his creditors,” an instruction that he must have done some act to indicate the intent, was held properly refused, an instruction being given in the words of the statute.

6. Upon a general judgment in an attachment suit, it is error to award a special execution against the property attached.

Error to Jackson Circuit Court.

Suit by attachment upon a note not due. After the usual averment setting forth the execution of the note, and describing it, the petition stated that the note was “due and unpaid.” The affidavit set forth the 7th, 8th and 3d grounds of attachment, specified in the act (R. C. 1845.) The defendant and not the State was made the obligee in the bond given upon suing out the writ. The defendant, at the return term and before the note was due, filed a plea in abatement to the 7th and 8th grounds, but did not take issue on the third. At the trial, the plaintiff was permitted to read in evidence portions of a deposition of the defendant, taken in another suit pending against defendant and another, in which third parties were plaintiffs, to the reading of which defendant excepted. The jury returned a general verdict for the plaintiff. The defendant afterwards moved for an arrest of further proceedings, on the ground that the verdict did not warrant a further prosecution of the suit. The motion was overruled, and the cause continued. In the interval between the two terms, the note fell due. At the next term, and on the fourth day thereof, the defendant asked leave to file a demurrer to the plaintiff's petition, which was not granted, and final judgment was rendered for want of an answer for the amount of the note, with an award of a special execution against the property attached.

At the trial of the plea in abatement, the following instruction asked by defendant was refused:

“3. Before the jury can find for plaintiff, they must believe that defendant, at the time the attachment was sued out, had conceived an idea or intention to hinder or delay his creditors in the collection of their debts, and that he had done some act to indicate a design to carry out such intention.”

The court instructed the jury to find for defendant, unless at the time of the attachment, “he was about fraudulently to convey, assign, conceal or dispose of his property or effects so as to hinder or delay his creditors in the collection of their debts.”

After a motion in arrest of judgment overruled, the defendant sued out this writ of error.

J. B. Hovey, for plaintiff in error.

I. The court erred in permitting portions of defendant's deposition in another cause to be read in evidence. 1. The portions read were irrelevant to the issue in the cause in which the deposition was taken. 2. The rule as to sworn admissions at common law extended only to voluntary affidavits, bills and answers in chancery, examinations before commissioners in bankruptcy, oral testimony given in a regular cause before a court, and depositions which have been used for the purpose of evidence. ( Collett v. Keith, 4 Esp. Cases, 212.) 3. Since our practice act of 1849, the reason for allowing sworn admissions has altogether ceased, as either party may be sworn as a witness in the cause. (Art. 24, § 11.) II. The court erred in refusing the third instruction. The word “fraudulently” is a legal term which should have been defined to the jury. III. As one of the causes of attachment mentioned in the affidavit did not warrant a suit upon a note not due, and was not withdrawn, a general verdict for the plaintiff did not authorize him to further prosecute the suit, and so the motion in arrest after verdict upon the plea in abatement should have been sustained. IV. There was error in refusing leave to defendant to file his demurrer, as he was not bound to plead to the merits of the action until the next term after the note became due, and within the first six days thereof. This being a suit under a special statute, the act of 1849, as to the time of pleading to suits on notes, does not apply. V. The motion in arrest of judgment should have been sustained, because the petition was upon a note not due, and did not refer to any statute which authorized such a suit. VI. No sufficient bond was filed. (5 Mo. Rep. 18. 13 Id. 25.)

J. W. Reid, for defendant in error.

1. Smith's deposition was properly allowed to be read in evidence as a sworn admission, nor does it matter that the portions read were immaterial to the issue in the cause in which it was taken. ( Collett v. Keith, 4 Esp. Cases, 212.1 Starkie, 172. 1 Camp. 30. 4 Camp. 10. 1 Litt. (Ky.) 219-20.) Nor is it material that it had never been used on a trial, as that would not affect its value as an admission. The statute of 1849, allowing a party to call his adversary as a witness, is without prejudice to the right of proving his admissions. 2. The attachment act of 1847 is a general law--a mere supplement to the act of 1845--and of course need not be specially pleaded. 3. There is nothing in the practice act of 1849 or in the supplementary attachment law of 1847, which changes the time of pleading in suits upon notes not due. The judgment by default in this case was not rendered until the fourth day of the next term after the note was due. 4. The third instruction asked by defendant was properly refused. It involves the absurdity of a plaintiff taking steps to prevent a fraud which has been consummated. 5. The insertion in the affidavit of a cause which did not warrant an attachment under the circumstances, was mere surplusage, and no ground for arresting the judgment after verdict, no issue being taken upon it. The verdict was upon the issues taken. 6. If the bond was informal, it should have been taken advantage...