Maurer v. Phillips

• Citation: 182 Mo. App. 440,168 S.W. 669
• Decision Date: 29 June 1914
• Docket Number: No. 1186.,1186.
• Parties: MAURER v. PHILLIPS et al.
• Court: Court of Appeal of Missouri (US)

168 S.W. 669

182 Mo. A. 440

MAURER v. PHILLIPS et al.

No. 1186.

Springfield Court of Appeals. Missouri.

June 29, 1914.

1. JUSTICES OF THE PEACE (§ 91)—PLEADING —ACTION ON NOTE.

Formal pleadings are not necessary in a justice court, and in an action on a note, the note, filed with the justice, is of itself a sufficient statement of the cause of action.

2. ATTACHMENT (§§ 207, 210)—JURISDICTION —PERSONAL SERVICE OR APPEARANCE.

Where defendant in a suit by attachment is personally served or enters his appearance, the jurisdiction of the court is not dependent on the process of attachment, but that process is merely ancillary to hold the property as against any act of his pending the litigation, and the cause proceeds in the usual way, resulting in a general judgment under which the attached property may be sold by virtue of the execution, and not of the attachment; but where the court's jurisdiction is dependent on its grasp of the defendant's property, the regularity of the attachment proceeding is material.

3. APPEAL AND ERROR (§ 1043)—AFFIDAVIT— AMENDMENT—HARMLESS ERROR.

Under Rev. St. 1909, § 1850, providing that in every stage of the action the court shall disregard any error or defect in the pleadings or proceedings not affecting the substantial rights of the adverse party, and that no judgment shall be reversed for such an error or defect, and section 2341, providing that no attachment shall be dissolved for insufficiency of the affidavit when plaintiff is willing to make and file a new and sufficient affidavit, the amendment

of an affidavit, alleging that plaintiff and another, composing a firm, had a demand against defendant, and alleging certain statutory grounds, to an affidavit on the same grounds, alleging a demand in favor of the plaintiff only, was not reversible error.

4. ATTACHMENT (§ 125) — DEFECTS IN AFFIDAVIT —WAIVER.

Where plaintiff amended his affidavit for attachment, alleging a demand due to himself and another, so as to allege only a demand due himself, defendant, by not standing on his motion to strike out the amended affidavit, but filing a plea in abatement and going to trial, waived any alleged departure from the original cause of action.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by L. Maurer against C. A. Phillips and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Scott & Bowker, of Nevada, Mo., and J. B. McGilvray, of Kansas City, for appellants. Van Pool & Martin and Edwin L. Moore, all of Lamar, for respondent.

STURGIS, J.

This suit was commenced in a justice of the peace court in Barton county, Mo., by plaintiffs filing therein two promissory notes executed by the defendants, for $77 each. One of these notes is payable to plaintiff, L. Maurer, and the other to one D. K. Griffin. It appears that plaintiff and Griffin had at some time been partners, and it is likely that these notes grew out of the partnership business. It is admitted that D. K. Griffin had been dead for some years, and that the partnership business had been long since fully settled. Just how plaintiff came to have the Griffin note is not disclosed. In aid of a suit thus commenced, the plaintiffs filed an affidavit for attachment, alleging several of the statutory grounds, and containing the allegation that plaintiffs will be in danger of losing their claim unless the attachment be levied on Sunday. In the caption of this affidavit the plaintiffs are designated as "Maurer & Griffin, a firm composed of L. Maurer and D. K. Griffin." It is alleged therein that plaintiffs have a just demand against the defendants, the amount of which is alleged to be $200. It appears that a change of venue was taken to another justice of the peace, where the defendants appeared and filed a motion to dismiss the cause for the reasons that the justice has no jurisdiction; that the papers disclose two separate causes of action belonging to separate individuals; that there is no such firm as Maurer & Griffin; that the firm of Maurer & Griffin has long since been dissolved and the partnership affairs settled up and the firm assets divided; that D. K. Griffin is dead, and plaintiffs are not the personal representatives of said Griffin; that two causes of action have been improperly joined. This motion was sustained in the justice court, judgment of dismissal entered, and the plaintiff appealed the case to the circuit court. The justice's transcript shows that after the motion to dismiss was filed in his court, plaintiff asked leave to amend by striking out the name of D. K. Griffin, because it is conceded he is dead, and to leave the suit pending in the name of L. Maurer on the one note payable to him for $77, but the justice refused to permit any amendment and sustained the motion to dismiss. When the case reached the circuit court, the plaintiff filed an amended affidavit for attachment, wherein he, L. Maurer, is the sole plaintiff. This affidavit contains the same grounds for an attachment as the one filed in the justice court, but alleges that the plaintiff, L. Maurer, has a just demand against the defendants, amounting to $77. Thereupon the defendants filed a motion to strike out the amended affidavit, for the reason that said affidavit is a complete change of the cause of action tried before the justice of the peace. This motion was overruled. Thereupon the defendants filed their plea in abatement, putting in issue the grounds of attachment alleged in the amended affidavit. Thereafter such proceedings were had, resulting in the attachment being sustained, and a judgment in favor of the plaintiff on the one note payable to plaintiff. The defendants appealed to this court, and the sole error complained of is that the trial court erred in refusing to sustain their motion to strike out the...