Sharkey v. Williams

• Decision Date: 09 February 1886
• Citation: 20 Mo.App. 681
• Parties: F. J. SHARKEY, ASSIGNEE, Appellant, v. J. D. WILLIAMS, Respondent.
• Court: Missouri Court of Appeals

20 Mo.App. 681

F. J. SHARKEY, ASSIGNEE, Appellant,

v.J. D. WILLIAMS, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 9, 1886.

APPEAL from the St. Louis County Circuit Court, W. W. EDWARDS, Judge.

Affirmed.

DAVID MURPHY, for the appellant.

GEORGE W. ROYSE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was a suit by attachment. The affidavit following the requirement of the statute (Revised Statutes, section 403), states that the plaintiff has a just demand against the defendant therein, now due, and that the amount which this affiant believes that plaintiff ought to recover, after allowing all just credits and set-offs, is three hundred and twenty-five dollars. It then proceeds to allege some of the grounds of attachment prescribed in Revised Statutes, section 398.

The defendant filed, what was stated in its caption, to be a plea in abatement to the attachment, in which each of the allegations of the affidavit was severally and distinctly traversed, including the allegation of the plaintiff having a just demand against the defendant in the sum named. This part of the plea was in the following words: “Now, comes the defendant herein, and, for plea in abatement to the attachment in the above entitled cause, denies that plaintiff has a just demand against him for the sum of three hundred and twenty-five dollars, and denies that plaintiff ought to recover, after allowing all just credits and set-offs, the sum of three hundred and twenty-five dollars, or any sum whatsoever.” The remaining portion of the plea traversed the averments of the affidavit, touching the fraudulent assignment and concealment of his effects by the defendant. The plaintiff filed a motion to strike out all that part of the plea in abatement suceeeding the part above quoted. This motion was overruled by the court, and the plaintiff excepted. Thereupon, the issues raised by the plea in abatement were tried before a jury, and a verdict was rendered for the defendant, whereupon the court rendered the usual judgment, that the attachment abate, and that the defendant recover the costs of the same. From this judgment, the plaintiff prosecutes this appeal.

The only question which arises upon the record is whether the matter in the so-called plea in abatement is matter in abatement, or in bar. The petition alleged that the defendant was indebted to the plaintiff, upon a cause of action therein stated, in the sum of three hundred and twenty-five dollars, the sum laid in the affidavit for the attachment. In so far as the matter above quoted, from the plea in abatement, denied any indebtedness from the defendant to the plaintiff, it was a denial of matters stated in...