Marshall v. Brown
| Decision Date | 16 November 1909 |
| Citation | 122 S.W. 790,145 Mo.App. 426 |
| Parties | JOHN B. MARSHALL, Appellant, v. ED. L. BROWN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.
AFFIRMED.
Judgment affirmed.
Lew R Thompson for appellant.
(1) Neither is there any merit in the statement of counsel for respondent that no motion for a new trial having been filed the errors complained of cannot be reviewed in this court. In order to obtain a review of the action of the trial court in ruling upon a motion which results in a final determination of the matter in controversy without a trial upon the merits no motion for a new trial is necessary. Aultman v. Daggs, 50 Mo.App. 280. (2) The appellate courts will review the decisions of the trial court on motions, although no motion for a new trial was filed. Johnson v. Latta, 84 Mo. 139.
Abington & Phillips for respondent.
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, Revised Statutes 1899, provide substantially that attachments in courts of record or before justices of the peace may be dissolved on motion at any time before final judgment if the affidavit on which the same was found shall be adjudged by the court insufficient; but it is therein provided, too, that no attachment shall be dissolved in such case if the plaintiff shall file a good and sufficient affidavit to be approved by the court in such time and manner as the court shall direct.
It may be that the mere failure of the plaintiff to sign the original affidavit was not sufficient of itself to defeat it, it appearing from the jurat thereon that he had actually sworn to the same before the justice. On this question, we express no opinion, as it is unimportant here.
The plaintiff certainly had the right under the statute above referred to, to amend by affixing his signature or by filing a new and sufficient affidavit. [Claflin v. Hoover, 20 Mo.App. 314; Musgrove v. Mott, 90 Mo. 107, 2 S.W. 214.]
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