S. Albert Grocery Co. v. Grossman

• Decision Date: 17 March 1903
• Citation: 100 Mo. App. 338,73 S.W. 292
• Parties: S. ALBERT GROCERY CO. v. GROSSMAN et al.
• Court: Missouri Court of Appeals

73 S.W. 292

100 Mo. App. 338

S. ALBERT GROCERY CO. v. GROSSMAN et al.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

APPEAL—ERRORS NOT AFFECTING MERITS.

1. Where the judgment is manifestly for the right party, it should be affirmed, regardless of errors occurring at the trial.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by the S. Albert Grocery Company against C. Grossman and another. Judgment for plaintiff on a trial de novo after an appeal from a justice, and defendants appeal. Affirmed.

The suit is on an account, and was commenced before a justice of the peace. In aid of the suit, plaintiff sued out a writ of attachment. The affidavit for the attachment contains the following statutory grounds: "(1) That the defendants are about fraudulently to conceal, remove, or dispose of their property so as to hinder and delay their creditors. (2) That the defendants have failed to pay the price or value of the articles and things delivered to them by the plaintiff, which by contract they were bound to pay upon the delivery. (3) That the debt herein sued for was fraudulently contracted on the part of defendants." A plea in abatement of the attachment was filed by defendants. On the trial of this plea the attachment was sustained. Plaintiff also had judgment on the merits. Defendants appealed to the circuit court, where, on a trial de novo, the attachment was again sustained, and judgment was again rendered for plaintiff on the merits. Defendants appealed to this court.

Marsh Arnold, for appellants. John A. Hope, for respondent.

BLAND, P. J. (after stating the facts).

Error is assigned for the admission of some unimportant evidence, and for the giving and refusing of certain instructions. We do not think it worth while to notice these alleged errors, for the reason that the judgment is so manifestly for the right party that it should be affirmed, regardless of any errors that may have intervened at the trial. The evidence is clear, convincing, and overwhelming that the defendants are mercantile adventurers; that they established a store and procured goods from the plaintiff by false and fraudulent representations as to both their ability and intention to pay for them, and with the intent of never paying for all they bought. The evidence shows that defendants had, time after time, gotten—in small amounts—the goods sued for from plaintiff by fraud and deceit; that after they were informed that their fraudulent...