Owens v. Johnson

Decision Date31 January 1875
Citation59 Mo. 89
PartiesJ. R. OWENS, Plaintiff in Error, v. THOMAS M. JOHNS Defendant in Error.
CourtMissouri Supreme Court

Error to Cedar Circuit Court.

R. F. Buller, for Plaintiff in Error.

I. If the affidavit and bond were not sufficient, appellant liad a right to file others. (Wagn. Stat., 1872, p. 183, § 10; p. 190-1, § 48; Jasper Co. vs. Chenault, 38 Mo., 357, and cas. cit.)

Even if the attachment had been dissolved, the suit should still have proceeded. (Wagn. Stat., 1872, p. 191, § 49.)

The defendant appeared generally--which waives any defect in the writ. (Bartlett vs. McDaniel, 3 Mo., 40; Barnett vs. Lynch. Id., 261; Griffin vs. Samuel, 6 Mo., 50; Evans vs King, 7 Mo., 411; Hembree vs. Campbell, 8 Mo., 572.)

Stratton & Johnson, for Defendant in Error.

HOUGH, Judge, delivered the opinion of the court.

This was an action commenced by attachment in the Cedar Circuit Court. The petition contained five counts, the aggregate amount claimed in two of which was insufficient to give the Circuit Court jurisdiction, and in the then remaining counts, the causes of action were defectively stated. The affidavit upon which the writ of attachment issued, was signed by J. R. Owens and had the following jurat:

Subscribed and sworn before me this 21st day of March, 1872.

J. R. OWENS, Clerk,

By LEWIS GAVELY, D. C.

Plaintiff also by his deputy approved his own bond.

The defendant appeared and moved to dissolve the attachment and dismiss the cause for the reason that the affidavit and bond were nullities, and because three of the counts stated no cause of action, and the aggregate amount claimed in the other two, was less than fifty dollars. The court sustained the motion, dissolved the attachment and dismissed the cause.

Before the determination of the motion the plaintiff filed an amended affidavit and a new bond. There was no error in dissolving the attachment.

The affidavit was a nullity and there was nothing by which to amend. The writ had issued without authority of law and the proper motion would have been to quash the writ The result reached was perhaps the same.

The suit, however, should have proceeded as if commenced by summons; the defendant was in court and a general judgment could have been rendered against him. The petition was defective, but the plaintiff asked leave and had a right to amend and it was error to dismiss the suit.The judgment of the court dismissing the suit is therefore reversed and the cause remanded; the other judges concur...

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21 cases
  • State ex rel. Kansas City Public Service Co. v. Waltner
    • United States
    • Missouri Supreme Court
    • 25 d4 Março d4 1943
    ...that is merely defective can be amended; but where it is so defective that there is no affidavit at all, it cannot be amended. Owens v. Johns, 59 Mo. 89; State Bank v. Gibson, 278 S.W. 737. (10) The statute that control changes of venue in cases pending in Jackson County (R. S. 1939, sec. 2......
  • State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 37566.
    • United States
    • Missouri Supreme Court
    • 25 d4 Março d4 1943
    ...is merely defective can be amended; but where it is so defective that there is no affidavit at all, it cannot be amended. Owens v. Johns, 59 Mo. 89; Farmers' State Bank v. Gibson, 278 S.W. 737. (10) The statute that control changes of venue in cases pending in Jackson County (R.S. 1939, sec......
  • State ex rel. Norborne Land Drainage District Co. v. Hughes
    • United States
    • Missouri Supreme Court
    • 29 d6 Abril d6 1922
    ... ... Ry. Co., 114 ... Mo. 314. (c) Consent can not confer jurisdiction of the ... subject-matter. Parker v. Zeisler, 139 Mo. 299; ... Johnson v. Detrick, 152 Mo. 253, II. (d) ... Jurisdiction is authority to hear and determine a cause ... State ex rel. v. Stobie, 194 Mo. 45. (e) The ... ...
  • DeGraw v. DeGraw
    • United States
    • Missouri Court of Appeals
    • 22 d2 Abril d2 1879
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