Moore v. Otis
| Decision Date | 31 October 1854 |
| Citation | 20 Mo. 153 |
| Parties | MOORE, Defendant in Error v. OTIS, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. Suit by attachment on a note given by B. F. O. & Co., was commenced before a justice against B. F. O. &______O. The affidavit alleged that B. F. O.&______O. (composing the firm of B. F. O. & Co.,) were non-residents. The firm of B. F. O. & Co., was really composed of B. F. O. & R. S. Upon appeal to the circuit court, the suit was dismissed as to______O. Before or after this dismissal, (it did not appear which,) a plea in abatement was filed, denying the non-residence of B. F. O. &______O. Held, the only issue to be tried upon the plea was, whether B. F. O. was a non-resident.
Error to St. Louis Circuit Court.
The case is stated in the opinion. The following instructions asked for the defendant were refused: “If the jury shall believe from the evidence that, at the time of the execution of the note sued upon, and the issuing of the attachment process, Benjamin F. Otis and Robert Scott alone composed the firm of B. F. Otis & Co., and not B. F. Otis &______Otis, as it is alleged in the affidavit upon which the attachment was sued out, and that, at the time of the execution of said note and ever since, the said Robert Scott has been a resident of, and resided and still resides in the State of Missouri, they ought to find for defendant on the plea in the nature of a plea in abatement, notwithstanding the jury may believe that said Benjamin F. Otis, was, at said time, a resident of Boston, Massachusetts.” There was evidence that B. F. Otis and Robert Scott were partners in business, and had a house both in Boston and St. Louis. The style of the house in Boston was B. F. Otis & Co., and in St. Louis, Scott & Otis. Otis resided in Boston and Scott in St. Louis. It did not appear from the record, whether the attachment was levied upon partnership property or not.
Hart and Jecko, for plaintiff in error.
C. Harding, for defendant in error.
This suit was commenced before Mann Butler, Esq., a justice of the peace, in August, 1850. An attachment was issued, affidavit being made by Chester Harding, Jr. The suit was originally against B. F. Otis & ______ Otis. The affidavit on which the attachment issued was as follows: “Chester Harding, Jr., being duly sworn, upon his oath, says, that Benjamin F. Otis and ______ Otis, (comprising the firm of B. F. Otis & Co.,) are justly indebted to John E. Moore, after allowing, etc., in the sum of one hundred and forty-eight dollars and twenty cents, on account of a promissory note made by said B. F. Otis & Co., and this affiant has good reason to believe and does verily believe, that said Benjamin F. Otis and ______ Otis are not residents of nor residing in the State of Missouri.”
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