A. McDowell & Co. v. Morgan

• Citation: 33 Mo. 555
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 March 1863
• Parties: A. MCDOWELL & CO., Respondents, v. EDWARD MORGAN et al., Appellants.

33 Mo. 555

A. MCDOWELL & CO., Respondents,

v.EDWARD MORGAN et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Law Commissioner's Court.

S. H. Gardner, for appellants.

I. Neither the justice before whom the suit was commenced nor the Law Commissioner's Court had jurisdiction of the subject matter of the action.

The suit was founded on a penal bond, the penalty being one hundred and sixty-one dollars and twenty cents. (1 R. C. 1855, p. 266, § 14.)

II. Because, at the time this suit was brought, plaintiff had no cause of action against the defendants. The bond was made to P. W. Manning as obligee. The statute provides that he may assign the bond, and then the assignees might proceed in their own names. But this bond was not assigned at the time of the trial before the justice, and no assignment was pretended to be made until the bond was offered in evidence. On the trial in the Law Commissioner's Court, the plaintiffs having had no cause of action against defendants in the court where the suit was originally brought, they could not place themselves in any better position in the appellate court by procuring the assignment to be made there. The assignment might perhaps have been effectually made at the trial before the justice, but having failed to procure it there, they were bound to stand upon their cause of action as it was when it left the justice's court. (2 R. C. 1855, p. 973, § 18.)

DRYDEN, Judge, delivered the opinion of the court.

The plaintiffs sued Clark by attachment, and recovered judgment against him before a justice of the peace. After return of nulla bona on an execution issued on the judgment, the plaintiffs resorted to the present proceedings by motion against the obligors in the forthcoming bond given in the original suit for judgment for the value of the property attached, or so much thereof as should be sufficient to pay the amount due on the execution, and the justice having given judgment against the obligors they appealed to the Law Commissioner's Court, where, on a trial anew, they were again unsuccessful, and they have appealed to this court.

The statute fully warrants a proceeding like the one attempted in this case, and renders the obligors liable to a judgment in favor of the plaintiff for a sum sufficient to pay the primary judgment and damages; but, in order to this remedy, it is first the duty of the justice to direct the assignment, and of the constable to assign the bond to the plaintiff....