Nations v. Beard

• Decision Date: 05 November 1924
• Parties: J. C. NATIONS, Respondent, v. ROY BEARD, C. BARNES, J. C. STEWART, L. B. HISE and WILLIAM SHAW, Defendants, L. B. HISE, Appellant.
• Court: Missouri Court of Appeals

267 S.W. 19

216 Mo.App. 33

J. C. NATIONS, Respondent, v. ROY BEARD, C. BARNES, J. C. STEWART, L. B. HISE and WILLIAM SHAW, Defendants, L. B. HISE, Appellant.

Court of Appeals of Missouri, St. Louis

November 5, 1924

Appeal from the Circuit Court of St. Francois County.--Hon. Peter H Huck, Judge.

AFFIRMED.

Judgment affirmed.

Boyer & Threlkeld for appellant.

(1) Section 1748, Revised Statutes 1919, provides the only method of procedure and requisites of bond for the retention by defendant in attachment of the attached property pending a trial of the cause. This statute requires all forthcoming bonds to be given to the officer having the writ, and not to the plaintiff himself, and plaintiff cannot maintain an action on such bond until same is assigned to him by the officer. R. S. 1919, sec. 1748; Hughesville Mercantile Co. v. McGruder, 132 Mo.App. 387; McDowell v Morgan, 33 Mo. 555. (2) Section 1749, Revised Statutes 1919, provides that the officer shall return all bonds taken by him with the writ. There is no provision in the statute anywhere for the taking or approval of a forthcoming bond or a bond "to dissolve attachment" by a justice of the peace. Section 1772, Revised Statutes 1919, applies only to courts of record. Section 1749, Revised Statutes 1919 provides that the return of the officer must show that property was attached and that such property was in the township of the justice, or an adjoining township, or the court acquires no jurisdiction of the subject-matter; neither does the appellate court acquire jurisdiction on appeal. Sec. 1749, R. S. 1919; Connor v. Pope, 18 Mo.App. 86; Bank v. Doak, 75 Mo.App. 332; Nennon v. Railway, 105 Mo.App. 541; Barnes v. Plesser, 121 Mo.App. 677; State ex rel. v. Cunningham, 106 Mo.App. 58. (3) Section 1750, Revised Statutes 1919, makes the officer and his sureties liable for returning an insufficient forthcoming bond. Sec. 1750, R. S. 1919; Kreher v. Mason, 25 Mo.App. 291. (4) The statute provides for a summary proceeding, on motion before the justice on a forthcoming bond after execution returned unsatisfied. Sec. 1778, R. S. 1919; McDowell v. Loewen, 145 Mo.App. 49. (5) Attachment being a purely statutory proceeding such remedy must be pursued in strict conformity with the statute. The bond sued on in this case, having no statutory foundation, amounts to an effort on the part of plaintiff to set at naught the statutory laws of the State is not good as a common law bond, and is void as against public policy. 9 Corpus Juris, page 27, sec. 41; Fellows v. Krentz, 189 Mo.App. 547; State v. Cochran, 264 Mo. 581; 9 Corpus Juris, page 41, sec. 67, 2nd. par. (a) One signing a bond under a mistaken belief that the principal is subject to the jurisdiction of the court taking it is not bound and the bond is not good as a common-law bond. Conant v. Newton, 216 Mass. 105-110, and cases cited. (b) A bond to be good as a common-law bond must be based upon a valid consideration. See citation under Point 5, supra. (6) Where substance of a bond is prescribed by statute, if bond be so drawn as to include substantially all of the obligations imposed by the statute, and to allow every defense given by law, it will be valid, though slightly variant from the form prescribed, otherwise not. Hashaw v. Gullett, 53 Mo. 208; Graves v. McHugh, 58 Mo. 499; Flint ex rel. Lumpkin v. Young, 70 Mo. 321; Newton v. Cox, 36 Mo. 352; Wimpey v. Evans, 84 Mo. 144. "It is well settled that sureties on a bond are only chargeable according to the strict terms of the bond, and upon these terms they have a right to stand." 4 Elliott on Contracts, sec. 3504, page 696; Singer Mfg. Co. v. Allen, 122 Mass. 467; American Trust Co. v. Lauderback, 220 Pa. 197. (7) "The general rule is well settled, in controversies arising on the construction of a bond, with conditions, for the performance of duties, preceded by recitals; that when the undertaking is general, it shall be restrained and its obligatory force limited within the recitals." Ins. Co. v. McDearmon, 133 Mo. 677, and cases there cited. (8) The bond in suit provided for the payment of such sum as might be adjudged in favor of J. C. Nations, with interest and all costs of suit "on or before the 7th day of December, 1921, after judgment shall have been rendered." The effect of the bond was to pervert the administration of justice and therefore against public policy and void. Harrington's Admr. v. Crawford, 136 Mo. 467. (9) The judgment of the court being for plaintiff and against all of the defendants is an invalid judgment because rendered against all of the defendants, because upon the face of the return of the officer Roy Beard, one of the principals in said bond, J. C. Stewart and William Shaw, two of the sureties therein, were not served with process and were not in court.

W. A. Brookshire for respondent.

(1) A justice of the peace has authority to take a forthcoming bond, or a bond to dissolve an attachment, in attachment cases. Sec. 2992, R. S. 1919; Sec. 1772, R. S. 1919; Mercantile Company v. McGruder, 132 Mo.App. 387. (2) The bond sued upon, although not a statutory forthcoming bond, or a bond to dissolve an attachment, is good as a common-law obligation. Hayes v. Webster, 16 Mo. 258; Williams v. Coleman, 49 Mo. 325; State to the Use of v. Finke, 66 Mo.App. 238; State ex rel. v. Rogers, 99 Mo.App. 252; Rubelman v. Greve, 18 Mo.App. 6; Mercantile Co. v. McGruder, 132 Mo.App. 387; State to the Use of v. Cochrane, 264 Mo. 581. (3) The bond sued upon, being voluntary, does not contravene public policy nor conflict with any statutory requirement. It is, therefore, a valid obligation. 9 Corpus Juris 9; State to the Use of v. Cochrane, 264 Mo. 581; State ex rel. v. O'Gorman, 75 Mo. 370; State ex rel. v. Suppington, 67 Mo. 524; Woods, Admr., v. Williams, 61 Mo. 63; Fellows v. Krentz, 189 Mo.App. 547. (4) A bond given to dissolve an attachment is based upon sufficient consideration. Sec. 1772, R. S. 1919; 6 Corpus Juris 329; Williams v. Coleman, 49 Mo. 325; State Investment & Insurance Co. v. Quinlan, 53 Mo.App. 357; Overbeck v. Mayer, 59 Mo.App. 289; Scotland Co. v. McKee, 168 Mo. 282; Mercantile Co. v. McGruder, 132 Mo.App. 387. (5) The provision: "On or before the 17th day of December, 1921, after judgment shall have been rendered," does not make indefinite or invalid the bond. Berger Mfg. Co. v. Lloyd, 209 Mo. 681; 9 Corpus Juris, pp. 33 and 34; North St. Louis Building & Loan Association v. Obert, 169 Mo. 507. (6) A judgment against several defendants, where part are served with process and part are not served with process, is valid as to those served. Boyd v. Ellis, 107 Mo. 394; William v. Hudson, 93 Mo. 524; Lenox v. Clarke, 52 Mo. 115; Stillman v. Railroad, 200 Mo. 107; Ozark Co. v. Tate, 109 Mo. 265; Stevenson v. Black, 168 Mo. 549; Keaton v. Jorndt, 220 Mo. 117.

BECKER, J. Allen, P. J., and Daues, J., concur.

OPINION

BECKER, J.--

Appellant appeals from a judgment rendered against him and others as defendants below in an action upon a forthcoming bond.

It appears that the respondent, J. C. Nations, plaintiff below, brought suit against Roy Beard and C. Barnes before a justice of the peace in St. Francois Township, St. Francois County, Missouri, asking for judgment in the sum of $ 189.30 and had an attachment issued. Thereupon the defendants Beard and Barnes in that action, after their property had been attached in accordance with section 1772, Revised Statutes 1919, gave their forthcoming bond and moved the court to dissolve said attachment, which the court accordingly did.

At the time the attachment was dissolved and the defendants' property released, the case in question had been set for hearing before the justice on the 17th day of December, 1921; however, the case was not tried upon that day but upon application of the defendants therein was transferred to another justice within the same township who tried the case without a jury and rendered judgment in favor of J. C. Nations and against the said defendants Beard and Barnes in the sum of $ 189.30. In September, 1922, the judgment creditor Nations brought action against Beard and Barnes as principals and Stewart, Hise and Shaw as sureties on the said forthcoming bond. A judgment resulted against all of the defendants in the sum of $ 189.30, from which judgment the defendant Hise alone brings this appeal.

The bond in question is as follows:

"J. C. Nations, Plaintiff v. Roy Beard and J. C. Barnes, Defendants.

"Attachment Before J. L. Cleveland, Justice of the Peace. Bond to Dissolve Attachment.

"We, Roy Beard and C. Barnes as principals and J. C. Stewart, L. B. Hise and Wm. Shaw as securities acknowledge ourselves bound to the above-named plaintiff, James C. Nations in the sum of three hundred dollars ($ 300) upon this condition that if the said Roy Beard and C. Barnes shall pay to the said J. C. Nations the amount which may be adjudged in favor of the said J. C. Nations with interest and all cost of suit on or before the 17th day of December, 1921, after judgment shall have been rendered then this bond to be void, otherwise, it shall remain in full force.

"Witness our hands and seals this 6th day of December, 1921.

"(Seal) C. BARNES,

"(Seal) J. C. STEWART,

"(Seal) ROY BEARD,

"(Seal) L. B. HISE and WM. SHAW.

"Approved this 6th day of December, 1921.

"J. L. CLEVELAND,

"Justice of the Peace."

It is clear from the record before us that the forthcoming bond in question was intended as a statutory bond as provided for in section 1772 and not section 1748, Revised Statutes 1919. An examination of the bond itself at once discloses that it does not conform strictly to the requirements of said section 1772. The action of the plaintiff below therefore must be taken as based upon the...