Livengood v. Shaw

• Citation: 10 Mo. 273
• Parties: LIVENGOOD v. SHAW.
• Decision Date: 31 January 1847
• Court: United States State Supreme Court of Missouri

10 Mo. 273

LIVENGOOD

v.SHAW.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO JACKSON CIRCUIT COURT.

HICKMAN & WELLS, for Plaintiff.

HAYDEN, for Defendant.

MCBRIDE, J.

Benjamin Shaw brought his action of assumpsit against Samuel C. Livengood in the Jackson Circuit Court. The declaration contained two money counts, and one count for goods and chattels, horses, harness, &c., sold and delivered by plaintiff to defendant. At the date of the filing of the declaration, the plaintiff also filed his affidavit, upon which an attachment issued against the goods and chattels and real estate of the defendant, and which was subsequently levied by the sheriff on some horses, harness, &c., as the property of the defendant: garnishees were likewise summoned.

On the return day of the process, the plaintiff asked and obtained leave of the court to file an amended or new affidavit, thereupon the defendant filed his plea in abatement under the statute putting in issue the truth of the facts stated in the affidavit. Rev. Code, 1845, p. 139, § 25. To this plea the plaintiff filed a demurrer, which was sustained by the court, and the defendant excepted. The defendant then moved the court for leave to amend his plea in abatement, which the court refused, and he excepted. He then filed his plea of non-assumpsit to the action. At some, perhaps, previous stage of the proceedings, the defendant filed his motion, or made a motion (the record states that there is no motion on file) to dissolve the attachment, because the affidavit is insufficient, which motion was overruled by the court, and the defendant excepted. The defendant then filed his motion to strike out the first two counts in the plaintiff's declaration, because the cause of action set forth in the plaintiff's affidavit is not applicable to those counts. This motion appears not to have been disposed of by the court. At a subsequent term, a trial was had, which resulted in a verdict and judgment for the plaintiff, whereupon the defendant moved in arrest and for a new trial, which having been overruled by the Circuit Court, he excepted, and has brought the case here by writ of error.

The first question in the regular order of proceedings, presented by the record, is as to the sufficiency of the amended affidavit filed by the plaintiff. The motion made by the defendant on this point not being in the record, we are unable to know upon what grounds, or for what reason he asked the court to declare the affidavit bad and insufficient. A party asking the action of the court, upon a question presented by himself, should set out fully and clearly the reasons upon which he predicates his application, as it is upon those alone the court is presumed to act. Other causes may, in truth, exist, and escape the vigilance of the court, unless the counsel point them out, and a reversal for such cause would not comport very well with the spirit of the 32nd section of the act to regulate practice in this court (Rev. Code 1845, p. 906), which provides that “no exception shall be taken in an appeal or writ of error to any proceedings in the Circuit Court except such as shall have been expressly decided by such court.”

It may be urged, however, that the court has directly decided that the affidavit is sufficient by overruling the defendant's motion to quash, but the practice of the courts is to require parties making motions, to do so in writing, and to set down their reasons. If in doing this the party assigns errors which do not exist, either in law or in fact, the court might very properly overrule the motion, and in so doing could only be said to have decided upon the sufficiency of the reasons set forth in the motion, and correctly decided, notwithstanding there might be substantial defects in the affidavit. A party should truly set out his reasons in his motion, otherwise the reasons set out may withdraw the...