Moore v. Otis

• Decision Date: 31 March 1853
• Citation: 18 Mo. 118
• Parties: MOORE, Appellant, v. OTIS et al., Respondents.
• Court: Missouri Supreme Court

18 Mo. 118

MOORE, Appellant,

v.OTIS et al., Respondents.

Supreme Court of Missouri.

March Term, 1853.

1. A suit by attachment was commenced before a justice against Benjamin F. Otis and_______Otis, as non-residents, upon a note signed by B. F. Otis & Co., and judgment by default was rendered against the defendants upon publication. On appeal to the circuit court, it was held erroneous to refuse permission to the plaintiff to dismiss as to_______Otis it appearing that no such person was ever a member of the firm

Appeal from St. Louis Circuit Court.

C. Harding, for appellant.

H. N. Hart, for respondent.

RYLAND, Judge, delivered the opinion of the court.

The plaintiff commenced his suit by attachment, before a justice of the peace, against Benjamin F. Otis and ____ Otis upon a promissory note, signed by B. F. Otis & Co. The writ was served on Robert Scott, as garnishee, and returned “not served on the defendants.” Notices were published according to the directions of the statute concerning attachments, and judgment was rendered against the defendants by default for $149.64 for debt and interest, and also for costs. This judgment was rendered on the 14th September, 1850. On the 17th September, 1850, the justice's transcript shows, that the defendant appeared and moved the jnstice to set aside the judgment by default, which motion was overruled; and thereupon an appeal was taken to the Circuit Court. The application for this appeal and the affidavit for the same, were made by Robert Scott, who stated, that he appealed because he considered the applicants aggrieved by the judgment of the justice.

The transcript was docketed in the Circuit Court, “John E. Moore v. B. F. Otis & Co.” The cause was, on motion of defendants by their attorney, continued at the November term, 1851, of the Circuit Court. The motion for this continuance was supported by the affidavit of Robert Scott, agent for Benjamin F. Otis. Afterwards, at the April term, 1852, of said Circuit Court, the parties appeared by their respective attorneys, and neither party requiring a jury, the cause was submitted to the court, and the court having duty heard and considered the same, ordered that the cause be dismissed at the costs of the plaintiff. The plaintiff moved to set aside this order and judgment dismissing the suit; his motion was overruled, and he brings the case here by appeal.

1. The bill of exceptions in this case shows that, when it was called for trial, the plaintiff moved the court for leave to discontinue the action as to______Otis, one of the defendants. This motion being opposed by defendants' counsel, was laid over by the court until the next morning. The defendants also moved to dismiss the plaintiff's suit. Pending these motions, the plaintiff introduced evidence which it was agreed should be considered by the court, sitting as a jury, subject to its decision upon the above mentioned...