Shelton v. Smith
| Decision Date | 07 January 1924 |
| Citation | 257 S.W. 509,214 Mo.App. 519 |
| Parties | LEE SHELTON, Respondent, v. C. C. SMITH, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.
AFFIRMED.
Judgment affirmed.
James V. Billings for appellant.
(a) An affidavit of attachment is jurisdictional and a matter of record (part of the record proper). Secs. 1730, 2975, R. S 1919; Norman v. Horn, 36 Mo.App. 419; Third Nat'l Bank v. Garton, 40 Mo.App. 113; Bray v McClury, 55, Mo. 128, 133. (b) Objection that petition fails to state a cause of action may be raised for the first time upon appeal. Peltze v. Eichele, 62 Mo. 171; Hoffman v. McCracken, 168 Mo. 337; LaCrosse Lumber Co. v. Railway, 197 Mo.App. 546. (c) Error appearing on the face of the record, the appellate court will review it, though appellant filed no motion for new trial or in arrest of judgment. Dysart v. Crow, 170 Mo. 275; State ex rel. v. Carroll, 101 Mo.App. 110. (d) The paper filed for an attachment was no affidavit, as required by law. Bryant v. Duffy, 128 Mo. 18; Norman v Horn, 36 Mo.App. 419; Third Nat'l. v. Garton, 40 Mo.App. 113; Poe v. Western Buyers' Ass'n, 238 S.W. 547; Hargadine v. Van Horn, 72 Mo. 370. (e) The alleged affidavit was not made nor signed by the proper person, nor in person by him, and is totally void. It purports to have been made by "Lee Shelton and says that the plaintiff, Lee Shelton . . ." and is signed by "George Smith, Attorney for plaintiff for and on behalf of plaintiff, Principal." Secs. 1730, 2975, R. S. 1919; McKey v. Hyatt, 42 Mo.App. 443; Owens v. John, 59 Mo. 89; Godman v. Gordon, 61 Mo.App. 685; Gilkeson v. Knight, 71 Mo. 404; Johnson v. Gilkeson, 81 Mo. 55; Alexander v. Haden, 2 Mo. 228; Hargadine v. Van Horn, 72 Mo. 370. (f) The alleged affidavit actually charges no grounds of attachment whatsoever, and is a total nullity. (See certified copy of alleged affidavit.) If any are held to be alleged, then it is void because of repugnance. Poe v. Western Buyer's Ass'n, 238 S.W. 547; Hinkle v. Lovelace, 204 Mo. 208, 6 C. J. 135. (g) The writ of attachment is totally void for want of proper affidavit properly signed. Third Nat'l. Bank v. Garton, 40 Mo.App. 113; Burnett v. McCluey, 78 Mo. 676; Hargadine v. Van Horn, 72 Mo. 370; Bray v. McClury, 55 Mo. 128. (h) No jurisdiction to support judgments, no valid affidavit nor writ of attachment, no valid attachment of property, and no service in person. Sec. 2987, R. S. 1919, and all authorities cited, supra.
George Smith for respondent.
No brief filed for respondent.
Plaintiff proceeded by attachment in a justice of the peace court, and on trial in the justice court the attachment was sustained and judgment given on the merits in favor of plaintiff. Defendant appealed to the circuit court, but failed to serve notice of the appeal as required by statute, and the judgment of the justice was affirmed for failure to give said notice. From the judgment affirming the judgment of the justice defendant appealed.
Defendant relies upon alleged fatal defects in the affidavit for attachment, and has brought up only the record proper. This affidavit was made upon a blank sometimes kept by a justice of the peace. After the caption the affidavit proceeded in the usual form as follows: "This day personally appeared before me, G. W. Richardson, a justice of the peace within and for the county of Dunklin aforesaid, Lee Shelton, and says that the plaintiff, Lee Shelton, has a just demand against C. C. Smith, defendant, and that the amount which the affiant believes plaintiff ought to recover, after allowing all just credit and setoffs, is one hundred and twenty dollars, now due, and that he has good reason to believe and does believe that the defendant, C. C. Smith," etc. Here follows what was intended to be allegations covering all of the fourteen grounds for attachment, except the second, eleventh and twelfth. There were printed upon the blank used all of the fourteen grounds for attachment in the same language, and in the same order as they appear in section 1725, Revised Statutes 1919. The words "where the defendant" were stricken from the first to the tenth inclusive, except the second ground was stricken out entirely. The eleventh and twelfth grounds were stricken entirely out, and in the thirteenth the words "where the defendant has failed to pay the" were stricken, and in the fourteenth the word "where" was stricken. The affidavit was signed "George Smith, attorney for plaintiff for and on behalf of plaintiff." The jurat of the justice follows and is in the regular form.
Defendant contends that this purported affidavit is a nullity. This contention is based on two grounds. First, that there are no grounds for attachment alleged, and, second, that it is not signed and sworn to by the alleged affiant.
Plaintiff had the right to allege in the affidavit as many grounds for attachment as he desired (Sauerwein v. Champagne Co., 68 Mo.App. 29), and evidently attempted to allege eleven grounds. If the affidavit as to the grounds for attachment be read with the stricken words omitted, as was evidently intended, the first ground would be correctly alleged, and the following grounds except the thirteenth and fourteenth, would be substantially correct. If the affidavit were rewritten with the stricken portions omitted, the connection and punctuation would not be a model to be recommended, but would, we think, be sufficient as to allegations for grounds of attachment in a justice of the peace court.
The second ground of attack on the affidavit is that it is not signed and sworn to by the alleged affiant. The affidavit states that Lee Shelton, the plaintiff, is the affiant. "George Smith, attorney for plaintiff for and on behalf of plaintiff" signed and swore to the affidavit. The affidavit may be made by a plaintiff or some person for him. [Sec. 1730, R. S. 1919.] It appears in the record that defendant appeared in the justice court and contested both the attachment and the cause on the merits and thereafter appealed to the circuit court. In Maurer v. Phillips, 182 Mo.App. 440, 168 S.W. 669, the sufficiency of an affidavit in attachment commenced in a justice of the peace court was challenged. In that case the affidavit filed in the justice court named "Maurer & Griffin, a firm composed of L. Maurer and D. K. Griffin" as plaintiffs. It was alleged in the affidavit that plaintiffs had a just demand, etc., against the defendants. A change of venue was taken to another justice where the defendant appeared and filed a motion to dismiss on the ground that there was no such firm as Maurer & Griffin. The motion was sustained and judgment of dismissal entered, and the cause appealed to the circuit court. In the circuit court an amended affidavit was filed in which L. Maurer was named as the sole plaintiff. A motion was made to strike the amended affidavit, which motion was overruled. The defendant thereupon filed his plea in abatement putting in issue the grounds of attachment alleged in the amended affidavit. The cause finally reached this court, and the only question was the correctness permitting the amendment. The contention here was that by the amendment the cause of action was completely changed. Judge STURGIS, speaking for this court, said: ...
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