Sloan v. Forse

• Decision Date: 31 October 1847
• Citation: 11 Mo. 126
• Parties: SLOAN v. FORSE.
• Court: Missouri Supreme Court

11 Mo. 126

SLOAN

v.FORSE.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

CROCKETT & BRIGGS, for Appellant.

1. The publication proved in this case under the statute, was altogether insufficient, and hence the judgment was illegal, and should have been set aside on defendant's motion. Rev. Stat. 1845, p. 137. 2. It will doubtless be insisted here, as it was below, and with seal--that the order of publication and publication proved against the appellant, was in conformity to the practice of the court. This amounts to a sanctioning and a perpetuating a palpable disregard of the statute, simply because the vicious thing has been done very often. Of that “practice” we cannot speak, nor if it has existed for years, does it follow either that the appellate court knows any such thing, or that it is bound to sanction it. It is sufficient to say that if other defendants have declined or omitted to avail themselves of such a disregard of the law or proceedings against them, they had a right to do so, but not to make Mr. Sloan, the appellant, a party or privy in their suit and bind him, whenever he has a case, to yield up his rights under the law because others have done so before him.

TODD, for Appellee.

1. The evidence offered on the assessment of damages, and the instructions of the Circuit Court not having been preserved by bill of exceptions, the judgment of the court below must be affirmed. 1 Mo. R. 14, 166; 3 Mo. R. 341; 4 Mo. R. 626; 7 Mo. R. 4; 8 Mo. R. 128, 136, 234; 9 Mo. R. 166.

2. The order of publication made by the court in this suit was properly made: 1st. Because property of the defendant has been attached in this suit. 2nd. Because the defendant at the return term of the writ, to-wit: April term, 1846, had not appeared and answered to the action within the first six days of term. On these facts, the order is to be made. See § 14 of the act to provide for the Recovery of Debts by Attachment. Rev. Code of 1845, p. 137.

3. The order as made was in compliance with the statute, to-wit: § 14, p. 137, of the Rev. Code of 1845. It states the amount of the plaintiff's demand, that the defendant's property has been attached in the suit and unless the defendant appear at the next term of the court to be held on the third Monday of November next, and on or before the third day thereof, if the term shall so long continue, and if not, then before the end of the time, judgment will be rendered against him and his property sold to satisfy the same. It goes on with something more, stating how long, when and where the notice shall be published, which however is mere surplusage, because the statute does not require the order to contain this; the next section of the act fully providing for this.

4. By the transcript brought up to this court by the appellant, it appears that the appellant had actual notice of this suit; retained an attorney to attend to it. Also that the appellant took part in the inquiry of damages, offered instructions, objected to evidence, moved for a new trial, and to set the judgment aside and to grant leave to plead upon affidavit, to none of the decisions of the court thereon, was any exception taken, whereby the appellant in judgment of the law, instead of being aggrieved by the final judgment of the court stands by the record, submitting to the same without exception or objection. As the appellant has brought up this transcript, he cannot object to its being looked into throughout. That this court may ascertain what has been cotemporaneous construction by the means referred to, see 5 Cranch, 22. Also if the Legislature meant to require a particular, rather than a general statement of the nature of the action in the notice, why have they omitted to say so, when they, in fixing the affidavit in the same act; section 3, meaning that that should be particular to use language expressly requiring it? To show further, that when such has been their intent, they have used appropriate and clear words, see § 4, of the act concerning Boats and Vessels, Rev. Code of 1845.

MCBRIDE, J.

Jeremiah Forse instituted his action of assumpsit in the Circuit Court of St. Louis county against Edward C. Sloan, by attachment The declaration consists of one count for freight for the transportation of leas from Galena, Ill., to St. Louis. The defendant not having been personally served with process, not appearing to the action, an order of publication was made at the return term of the writ. At the subsequent term the plaintiff proved the publication of notice as required by the order of court, and moved for a judgment by default against the defendant; which was entered, and an inquiry of damages awarded to the same term. A few days after the judgment by default was taken and before the assessment of damages, the defendant appeared in court and moved the court to set aside the judgment by default, assigning a variety of reasons, but his motion was overruled and he excepted. The assessment of damages having been made the defendant again filed a motion setting out a number of reasons for setting aside the judgment, the assessment, and the judgment by default, which being again overruled by the court, he excepted and took an appeal to this court.

We have not deemed it necessary to make a more detailed statement of the case, under the view which we entertain of the...