McClelland v. Dougherty

• Decision Date: 20 May 1918
• Docket Number: No. 12899.,12899.
• Citation: 204 S.W. 201
• Parties: McCLELLAND v. DOUGHERTY et al.
• Court: Missouri Court of Appeals

204 S.W. 201

McCLELLAND v. DOUGHERTY et al.

No. 12899.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by Celia McClelland against Gloyce B. Dougherty and others. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 192 Mo. App. 498, 182 S. W. 766.

Ed. E. Aleshire, of Kansas City, for appellants. Milton Schwind, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for damages alleged to have resulted to her by reason of a wrongful attachment being sued out by defendants and levied upon her property. The judgment in the trial court was for plaintiff. It appears that plaintiff's husband was defendants' tenant under a lease of an apartment house which was used by her and her husband as a residence. The ground for the action against plaintiff, in which her personal property was attached, was that her husband had leased the apartment and had left it before the lease expired and thereby damaged defendants. The attachment was dissolved, and she had judgment on the merits. After the dissolution of the attachment she instituted this action for damages.

Defendants pleaded new matter in their answer, which, if true, we will assume would have entitled them to judgment. After filing this answer the case drifted along in the circuit court without trial for nearly two years, when plaintiff's counsel observed he had not filed any reply. He then filed one and notified defendants' counsel. They then came in and filed a motion to strike out the reply as being filed out of time and for judgment on the pleadings. These motions were overruled. It may readily be conceded that the reply should have been filed much sooner and within the time contemplated by the statute and rules of court. But the parties evidently were assuming, all along, that a reply had been filed. No objection had been taken on that account, and no action was taken by defendants until the reply was filed, when they bestirred themselves with motions as above stated. The trial court had a discretion as to the matter, and it is plain that in the circumstances it did not abuse such discretion when it overruled defendants' motions. The cases cited by defendants are not considered to be applicable.

When the attachment was dissolved and judgment had also been entered against defendants on the merits, they appealed to this court, where the judgment was affirmed. 192 Mo. App. 498, 182 S. W. 766. But while the appeal was pending in this court plaintiff began the present action, and defendants insisted that it was prematurely brought It seems that when the attachment was dissolved and motion for new trial overruled, defendants (as plaintiffs in that action) did not take and preserve a bill of exceptions as to that part of the case during the term. By this failure the lien of the attachment came to an end. That is to say, if defendants intended to appeal...