Ranscher v. McElhinney
| Decision Date | 14 February 1882 |
| Citation | 11 Mo.App. 434 |
| Parties | G. RANSCHER, Respondent, v. A. McELHINNEY, Appellant. |
| Court | Missouri Court of Appeals |
1. Though a judgment upon a plea in abatement in an attachment suit is not a final judgment, in the sense that it may be appealed from, yet it may be reviewed on an appeal from the final judgment on the merits, where the bill of exceptions is not tendered until after the term at which the judgment on the plea in abatement was rendered.
2. A verdict in favor of the defendant on a plea in abatement releases the property attached, if no bill of exceptions is tendered at the term, though there has been no trial upon the issue of indebtedness.
APPEAL from the St. Louis County Circuit Court, EDWARDS, J.
Reversed and judgment.
A. McELHINNEY and JOHN W. McELHINNEY, for the appellant.
M. F. TAYLOR, for the respondent.
This is an action on a forthcoming bond given in an attachment suit. Judgment was rendered against the defendant McElhinney alone, who was a surety on the bond. It is not averred in the petition that the plaintiff recovered a judgment in the attachment suit. The breach of the bond assigned is, that the defendant McElhinney, having received the property from the defendant in the attachment, failed and refused to turn it over to the plaintiff. There is no evidence that the court ever made any order touching the disposition of the attached property; nor is there any evidence to sustain the award of damages which was made by the jury.
We should be compelled, for these reasons, to reverse the judgment and remand the cause; but there is one ground disclosed by the record on which it becomes our duty to end the litigation by entering judgment in this court for the defendant. It appears that the property was turned over to this defendant by the defendant in the attachment suit, at the time this defendant signed the forthcoming bond; that afterwards, upon the trial of the issue made by a plea in abatement, the defendant in the attachment had a verdict and a judgment thereon, that the attachment abate; that a motion for a new trial of this issue was filed and overruled; that the term adjourned without any bill of exceptions being taken to any ruling made by the court on the trial of this issue, or to the order overruling the motion for a new trial; that about a month after the term had so adjourned, this defendant, acting upon legal advice and in good faith, disposed of the attached property...
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First National Bank of Sundance v. Moorcroft Ranch Company
...Sutherlin v. The Underwriters' Agency, 53 Ga. 442; Bruce v. Conyers, 54 Ga. 680; Schlemmer v. Myerstein, 19 How. Pr., 412; Ranscher v. McElhinney, 11 Mo. App., 434. On motion to dissolve attachment there is an issue of fact regularly joined upon the affidavit for attachment and the traverse......
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Paddock-Hawley Iron Co. v. Mason
...the attachment leaves the property as if it had not been seized.--Rev. Stats., sect. 446; Drake on Attach., sects. 290, 411; Rancher v. McElhinney, 11 Mo. App. 434. The property should, therefore, at the final dissolution of the attachment, be given to the plaintiff herein, and, therefore, ......
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Paddock-Hawley Iron Co. v. Mason
...the attachment leaves the property as if it had not been seized.--Rev. Stats., sect. 446; Drake on Attach., sects. 290, 411; Rancher v. McElhinney, 11 Mo.App. 434. The should, therefore, at the final dissolution of the attachment, be given to the plaintiff herein, and, therefore, the plaint......
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