Marshall v. Brown

• Decision Date: 16 November 1909
• Citation: 145 Mo. App. 426,122 S.W. 790
• Parties: MARSHALL v. BROWN.
• Court: Missouri Court of Appeals

122 S.W. 790

145 Mo. App. 426

MARSHALL v. BROWN.

St. Louis Court of Appeals. Missouri.

November 16, 1909.

Rehearing Denied November 30, 1909.

1. ATTACHMENT (§ 122) — PROCEEDINGS — AMENDMENT — AMENDMENT OF AFFIDAVIT — RIGHT.

Under Rev. St. 1899, § 413 (Ann. St. 1906, p. 501), permitting an attachment to be dissolved on motion before final judgment if the supporting affidavit is insufficient, but prohibiting its dissolution if plaintiff files a sufficient affidavit in such time and manner as the court directs, plaintiff could, pending the hearing of a motion to dissolve the attachment because the affidavit was not signed, amend by signing the affidavit, or by filing a sufficient affidavit.

2. APPEAL AND ERROR (§ 281)—PRESENTATION BELOW—MOTION FOR NEW TRIAL—DENIAL OF AMENDMENT—NECESSITY.

Since attachment is only ancillary to the principal case, an appeal from an order discharging an attachment upon denying plaintiff's motion to amend a defective affidavit, after which plaintiff obtained judgment in the principal case, was not an appeal from an order disposing of the whole case upon a motion against the pleadings, but from an order denying an amendment, so that its denial cannot be reviewed in absence of a motion for new trial or for rehearing.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by John B. Marshall against Ed. L. Brown. From an order discharging a writ of attachment, plaintiff appeals. Affirmed.

L. R. Thomason, for appellant. Abington & Stanley, for respondent.

NORTONI, J.

This is an attachment suit which originated before a justice of the peace, and found its way into the circuit court by appeal. It appears the plaintiff filed his affidavit for an attachment before the justice, and, according to the jurat thereon dated and signed by the justice of the peace, he was sworn to the same. However, he failed to affix his signature thereto. After the case reached the circuit court, the defendant moved a dissolution of the attachment for the reason there was no affidavit filed therein before the justice. The point made and pressed upon the court was to the effect that although the plaintiff may have sworn to the affidavit before the justice of the peace, as appeared from the jurat thereon, executed by the justice, the affidavit was nevertheless no affidavit at all unless the plaintiff had affixed his signature thereto, and it appeared that he had failed to sign it. Upon the hearing of the motion, the plaintiff proffered to amend by affixing his signature to the affidavit or by filing a new and proper affidavit duly signed and verified. The court overruled the plaintiff's application to amend the original affidavit or to permit him to file an amended affidavit. Having overruled the application to amend, the court sustained the plaintiff's motion to dissolve the attachment on the grounds that there was no sufficient affidavit; it appearing that plaintiff had not signed the same. The attachment was therefore dissolved and the lien thereof discharged. Thereafter the cause went to trial on the merits, and the judgment was given for the plaintiff thereon. The plaintiff prosecutes this appeal from the order of the court dissolving and discharging the attachment. The court was clearly in error in denying the plaintiff's right to amend. Our statutes (section 413, Rev. St. 1899 [Ann. St. 1906, p. 501]) provide substantially that...