Olive v. Alter

• Decision Date: 31 March 1851
• Court: Missouri Supreme Court
• Parties: OLIVE, KING & WILSON v. ALTER, NEWMAN & HAYS.

14 Mo. 185

OLIVE, KING & WILSON

v.ALTER, NEWMAN & HAYS.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action of debt by the plaintiffs in error against the defendants in error. The declaration contained two counts. The first count recites, that on the 21st of April, 1843, the plaintiffs, as complainants, had filed in the St. Louis Circuit Court a bill in chancery against the defendant, Alter, and one Hubbard, a copy of which bill is contained in the count; from which it appears that the complainant had a mortgage upon the steamboat Inda, made by Hubbard to secure a large debt to them; that Hubbard was to keep the boat insured for their benefit. That a large portion of the mortgage debt was due and unpaid, and that Hubbard had failed to keep the boat insured. That the defendant, Alter, had by some means obtained possession of the boat, and was navigating the Mississippi river with her, at great risk of sinking her. That Alter was entirely insolvent, and Hubbard, also. That the boat was then at St. Louis, and that the plaintiffs had demanded the possession of her from Alter-- that they might sell her in satisfaction of the mortgage debt; but that Alter had refused to surrender the possession,and was then on the eve of removing the boat to New Orleans, out of the jurisdiction of the court, and would run the boat in debt so as to create liens upon her in favor of the crew, &c., and praying for a foreclosure of the mortgage, and that in the meantime Alter and Hubbard be restrained and enjoined from removing the boat beyond the jurisdiction of the court, and that the sheriff be directed to seize the boat, and hold her subject to the future orders of the court, unless the defendants would enter into bond, with good security, conditioned that they would safely keep the boat, and that they would at all times have her forthcoming in as good order as she then was, to abide any future order of the court. The bill was sworn to by one of the complainants, and being presented to the Hon. B. Mullanphy, then the judge of the St. Louis Circuit Court, in vacation, he indorsed upon the bill an order directed to the clerk of said court, requiring said clerk to let an injunction go, restraining, &c., the going forth of said boat out of the jurisdiction of said court, and the sheriff for that purpose to take it into his possession, unless bond be given by defendants in favor of the complainants, in the sum of $5,000, as finally conditioned to abide the event of the said suit, and to say or do whatever might be decreed by said court in that behalf.

But that before the injunction should issue, the complainants, or one of them, should give an injunction bond with Warburton or King as security, in the penalty of six thousand dollars. The count proceeds to aver that one of the complainants gave the injunction bond with security as required, and that thereupon, on filing said bill in the clerk's office of said court, with the judge's order for an injunction indorsed thereon, as aforesaid, there issued from the said office an injunction restraining the said Alter and Hubbard from removing said boat as prayed for, and as required by the order of said judge. That by virtue of said writ of injunction, the sheriff took the said boat into his possession, and detained her until the 24th of April, 1843, when, for the purpose of releasing said boat from custody, and as required by said writ of inunction, the defendant, Alter, as principal, and Ames, Hays & Newman, &c., his securities, entered into bond to the complainants in the sum of five thousand dollars, conditioned that whereas the plaintiffs had before then obtained an injunction issuing from the Circuit Court of St. Louis, commanding said Alter and Hubbard not to remove said boat, &c., pursuing the terms of the suit of injunction, and providing that if Alter and Hubbard should duly abide the event of said suit, and should pay, do and perform whatever should be decreed in that behalf by said court, then the obligation to be void. The count then avers that the said suit in chancery was removed by change of venue into the St. Louis Court of Common Pleas, in which court such proceedings were had that on the 30th of October, 1845, it was decreed by said court that Hubbard pay to the complainants the mortgage debt, with interest and costs, and that unless Hubbard, or some one for him, pay the same on or before the day appointed for sale, as hereinafter provided the equity of redemption be bound, &c. and it was further ordered and decreed that Alter immediately surrender the boat to the sheriff, who was appointed commissioner to execute the decree, and that if payment was not made as aforesaid, that the sheriff proceed to take possession of said boat, and if within five days after the seizure of the boat, the mortgage debt was not paid, that the sheriff proceed to sell the boat, &c., in satisfaction of it. The count then proceeded to aver that neither Hubbard, nor any one for him, had paid the mortgage debt; nor delivered up the boat to the sheriff as required by the decree. On the contrary, that Hubbard, or some one for him, had removed the boat beyond the jurisdiction of the court, so that the sheriff was prevented from taking possession of her, whereby the condition of the bond became forfeited, &c., and an action accrued to the plaintiffs, to demand the $5,000--the penalty of the bond.

The second count omits the bill, and all the proceedings prior to the giving of the bond by the defendants; recites the bond and the condition as given in the first count; avers that a decree was rendered as stated in the first count, and the breach is the same. Alter filed no plea. The other defendants filed thirteen pleas: 1st. Non est factum without oath. 2nd. That the bond sued upon was obtained of the defendants without any good or valuable consideration. 3rd. That after the making of the bond, the consideration wholly failed. 4th. Nul tiel record. 5th. That neither Alter, nor any one holding under him, has removed the boat, and there detained the same, beyond the jurisdiction of the court. 6th. That the conditions of said bond have not been broken, as alleged. 7th. That before and at the time of making the said bond the said Alter was lawfully possessed of said boat; and being so possessed thereof, the same was afterwards, by sheriff Milburn, by virtue of the said writ in the declaration mentioned, forcibly and illegally taken from Alter's possession, and forcibly and illegally detained by the sheriff until said defendants named make said bond--wherefore, for the purpose of relieving said boat from custody, and for no other consideration, the defendants made said bond, which is therefore void and of no effect. 8th. But after the making of the...