Musgrove v. Mott

• Decision Date: 06 December 1886
• Parties: MUSGROVE v. MOTT.
• Court: Missouri Supreme Court

2 S.W. 214

90 Mo. 107

MUSGROVE v. MOTT.

Supreme Court of Missouri.

December 6, 1886.

1. ATTACHMENT — JUDGMENT BY JUSTICE — AMENDMENT OF AFFIDAVIT AFTER APPEAL.

Where an attachment suit has been brought before a justice of the peace to recover judgment on a note not yet due, and judgment recovered, and the suit appealed to the circuit court, plaintiff may amend his affidavit in support of the attachment, and the suit will not be dismissed by reason of the erroneous judgment given by the justice.

2. SAME — DEFAULT OF DEFENDANT — PROOF.

Where, in an attachment suit, defendant files a plea in abatement, and afterwards plaintiff amends his affidavit in support, to which defendant makes no plea in abatement, and defendant makes default, the court is justified in sustaining the attachment, on plaintiff's motion, without further proof.

Appeal from circuit court, Clark county.

Attachment. Judgment for plaintiff. Defendant appeals.

Berkheimer, Reed & King, for appellant, Mott.

BLACK, J.

This suit was commenced before a justice of the peace, by attachment, on a note not then due. The justice's record does not show that defendant put in a verbal plea in abatement to the affidavit for attachment, as contemplated by section 471, Rev. St. 1879, but the parties went to trial, and there was judgment for the plaintiff, though the note was not yet due. The defendant appealed to the April term, 1883, of the circuit court, and at that term filed his plea in abatement. Subsequently, and at the same term, plaintiff filed an amended affidavit for attachment; and thereupon the defendant filed motions to strike out the amended affidavit, and to dismiss suit, both of which were overruled, and defendant excepted. At the following October term the court gave judgment sustaining the attachment, and against the defendant and the sureties on his appeal-bond.

1. There was no error in permitting the plaintiff to file an amended affidavit for attachment, or in overruling the motion to strike out the amended affidavit. Section 445, Rev. St. 1879, provides that, when an affidavit for attachment is adjudged insufficient, the attachment shall not be dissolved, if the plaintiff file a good and sufficient affidavit, and the amended affidavit may embrace the same and other grounds of attachment. See, also, Henderson v. Drace, 30 Mo. 362. If the affidavit be defective, the plaintiff need not wait until the same be held insufficient, but may amend in advance. But it is said there was nothing here to amend by. This is a mistake. In the affidavit before the justice the affiant says "he has good reason to believe, and does believe, that the defendant is going to remove his effects out of the state, and defraud the plaintiff out of his demand." By the amendment it was sought to make the affidavit show that the defendant was about to remove his property out of the state with intent to defraud, hinder, or delay his creditors, so as to comply with the fifth ground for attachment. To say that this affidavit was no...