McElfatrick v. Macauley

• Decision Date: 29 January 1884
• Parties: J. M. MCELFATRICK, Appellant, v. B. MACAULEY; D. S. FLETCHER, INTERPLEADER, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 102

J. M. MCELFATRICK, Appellant,
v.
B. MACAULEY; D. S. FLETCHER, INTERPLEADER, Respondent.

Court of Appeals of Missouri, St. Louis.

January 29, 1884

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

HERMANN & REYBURN, for the appellant: No notice to obligors of order, to deliver the check to the sheriff, was required.--1 Rev. Stats., tit. " " " " Attachment," sects. 421, 451, 452, pp. 66, 72; Weed v. Dills, 34 Mo. 483. The lien of the attachment survived the execution of the bond by Fletcher, and attached to the check in his hands.--Drake Attachment (5th ed.), ch. 13, sect. 331; Evans v. King, 7 Mo. 411; Haber v. Klauberg, 3 Mo.App. 342. Fletcher, by receiving the property and placing himself and the check outside the jurisdiction of the court, dispensed with the notice to him of motion for judgment, contemplated by sect. 452 of 1 Rev. Stats., p. 72.--Drake Attachment, sect. 332, ch. 13; Driggs v. Harrington, 2 Mont. 30; Kirk v. Morris, 40 Ala. 225. Fletcher was estopped from alleging, in proceeding on the bond, ownership in himself of the check.--Drake Attachment, sects. 339, 340; Page v. Butler, 15 Mo. 74; Waterman v. Frank, 21 Mo. 108; Dorr v. Clark, 7 Mich. 310; Gray v. MacLean, 17 Ill. 404; Braley v. Clark, 22 Ala. 361; Cooper v. Peck, 22 Ala. 406; Morgan v. Furst, 4 Mart. (U. S.) 116.

MCKEIGHAN & JONES, for the respondent: All the interlocutory orders made by the court below, as well as the final judgment in the case, were in the breast of the court, and it had power to vacate and set aside all, or any of them, until after the lapse of the term of the court, at which final judgment was rendered.--Freeman on Judgments, sect. 90; Hill v. St. Louis, 20 Mo. 584; Harbor v. Pacific R. Co., 32 Mo. 423; Dougherty v. President, etc., 53 Mo. 579; Randolph v. Sloan, 58 Mo. 155. The respondent had the right to interplead for his property, and is not now estopped from doing so.-- Page v. Butler, 15 Mo. 73; Bigelow on Estop. 430.

OPINION

THOMPSON, J.

The substance of this matter, buried in motions and cross-motions, is that the plaintiff brought a suit by attachment against Macauley, and levied the same on a cashier's check for $815, in the hands of Fletcher. Fletcher gave a forthcoming bond with two sureties. The attachment suit proceeded to judgment against the defendant. Execution was returned nulla bona. On motion of the plaintiff, the court ordered the sheriff to assign the forthcoming bond to the...