Pitman v. West

• Decision Date: 31 December 1917
• Citation: 199 S.W. 756,198 Mo.App. 92
• Parties: EDLA J. PITMAN, Plaintiff in Error, v. A. T. WEST, et al., Defendant in Error
• Court: Kansas Court of Appeals

199 S.W. 756

198 Mo.App. 92

EDLA J. PITMAN, Plaintiff in Error, v. A. T. WEST, et al., Defendant in Error

Court of Appeals of Missouri, Kansas City

December 31, 1917

Error to Atchison Circuit Court.--Hon. L. D. Ramsey, Judge.

AFFIRMED.

Judgment affirmed.

Ernest Ross, W. M. Jackson, and Vinton Pike for plaintiff in error.

Broaddus & Crow for defendants in error.

OPINION

ELLISON, P. J.

Edla J. Pitman and the Conway Savings Bank were separate attaching creditors of A. T. West who resided in Iowa, and this proceeding witnesses a contest between them for priority. The matter was finally heard by Hon. GEORGE W. WANAMAKER, Special Judge, and judgment rendered that the bank have priority. Pitman then sued out a writ of error from this court. No exceptions were preserved and we must dispose of the case on the record proper.

Pitman brought his action in the circuit court of Atchison county Missouri, on the 19th of April, 1915, against West, who was a physician, for malpractice, claiming ten thousand dollars damages. He sued out an attachment on the same day on the ground that West was a nonresident, but did not give bond and the writ was levied upon certain land in Atchison county on the 24th of April, 1915. On the 8th of the following July West entered his appearance and filed his answer in vacation consisting of a general denial, and an admission that he was a nonresident of this State, and an allegation that at the time of filing the suit, plaintiff had not given bond, "and therefore asking that the attachment be dissolved and the suit be dismissed."

On the 31st of December thereafter, in vacation, Pitman filed an attachment bond in the cause which was approved by the clerk. The proceedings were in this situation when a term of court opened in the month of January, 1916, with a special Judge presiding, the regular Judge being absent, when, on the 8th of January, the cause came up and was submitted for trial. West was not present, but having appeared to the cause, and the plaintiff waiving a jury, the court heard the evidence and rendered a general judgment for plaintiff for $ 10,000, but the attachment was not passed on, on account of the special Judge being counsel for the other creditor claiming priority, and the question of sustaining Pitman's attachment was continued to the following term.

In three days after this judgment was rendered Pitman sued out a general execution thereunder and the sheriff levied generally upon the land and advertised it for sale at the following March term, 1916.

At that March term, held by another special Judge, Pitman filed his motion for judgment sustaining his attachment against the land and that it be made a special lien on the attached land, which, as we have said, had been levied on generally by the sheriff and was to be sold at that term.

The Conway Savings Bank began an attachment suit against West on the 30th of June, 1915, being more than two months subsequent to Pitman's suit. At the time of filing its petition the bank filed an affidavit alleging West's nonresidence and also gave an attachment bond. Its writ of attachment was levied on the same land levied upon by Pitman's execution. It thereafter obtained judgment sustaining its attachment and for its claim, and on the 20th of January, 1916, had a special execution levied upon the land aforesaid by the sheriff, who advertised it for sale on the 8th of March, 1916, at the March term; he, the sheriff, in this way had Pitman's general execution and the bank's special execution, both levied on the land and a sale under each advertised for the 8th of March. The land was sold under the bank's special execution for the sum of $ 3500, which is the sum involved in the controversy.

At the March term, to which the matter of his attachment had been continued, Pitman filed his motion for a judgment sustaining his attachment and that it be made a special lien upon the property attached. Thereupon the bank filed its motion reciting the matters above set forth, concluding with the following:

"Wherefore the relator (the bank) moves this court to dissolve the attachment in the above entitled cause, and to postpone the lien of the judgment of said Elda J. Pitman to the special lien of attachment of your relator, and for reasons of said motion, states: That the filing of the answer on July 8, 1915,...