State ex rel. Froidl v. Tillman

• Citation: 662 S.W.2d 907
• Decision Date: 20 December 1983
• Docket Number: No. 47813,47813
• Parties: STATE of Missouri, ex rel., Rosemary FROIDL, Relator, v. Honorable Daniel T. TILLMAN, Judge 22nd Circuit Court of the City of St. Louis, Missouri and Honorable Edward Peek, Judge 22nd Circuit Court of the City of St. Louis, Missouri, Respondents.
• Court: Court of Appeal of Missouri (US)

Page 907

662 S.W.2d 907

STATE of Missouri, ex rel., Rosemary FROIDL, Relator, v. Honorable Daniel T. TILLMAN, Judge 22nd Circuit Court of the

City of St. Louis, Missouri and Honorable Edward

Peek, Judge 22nd Circuit Court of the

City of St. Louis, Missouri,

Respondents.

No. 47813.

Missouri Court of Appeals,

Eastern District,

Division One.

Dec. 20, 1983.

Charles W. Bobinette, St. Louis, for relator.

G. Keith Phoenix, St. Louis, for respondents.

PUDLOWSKI, Judge.

Relator, Rosemary Froidl, seeks a writ of prohibition against respondent Judge Edward Peek for granting a waiver of attachment bond and issuing a writ of attachment against relator's property and against Judge Daniel T. Tillman for his continuing to exercise dominion and control over relator's property. Relator contends that both judges lack jurisdiction in granting and maintaining Ms. Temple's, plaintiff in action below, writ of attachment.

Ms. Temple filed a two count petition against relator. The cause of action arises out of an automobile accident in which Ms. Temple was injured. In Count I she prayed for actual damages in the sum of $250,000 and in Count II she prayed for punitive damages in the sum of $250,000. Contemporaneously, she filed an affidavit in support of a writ of attachment, alleging the $500,000 in damages as pleaded in her damage petition. She also filed an unverified "Motion for Waiver of Attachment Bond." Judge Peek granted the motion for attachment and waived the attachment bond and issued a writ of attachment against relator's property. Subsequently, relator appeared before respondent, Judge Tillman, and argued that the writ of attachment was improperly issued and requested that the court grant her motion to dissolve the writ of attachment. The judge indicated his intention to overrule relator's motion but stayed his order to allow relator time to seek a writ of prohibition before this court. We granted a preliminary writ of prohibition.

The relator argues principally that the respondents were without jurisdiction to issue the writ of attachment without requiring the petitioner to post the necessary bond. In support of her claim, relator cites Chapter 521 of the Revised Statutes of Missouri and in particular, Section 521.050, which in pertinent part provides as follows:

Any plaintiff wishing to sue by attachment may file in the clerk's office of the court in which the attachment is instituted a petition or other lawful statement or exhibit of his cause of action, and, except in suits instituted by the state or a county in its own behalf, and also, except in cases where the defendant is not a resident of the State of Missouri, in either of which cases no bond shall be required, shall also file an affidavit and bond, and, thereupon such plaintiff may sue out an original attachment against the lands, tenements, goods, monies, effects and credits of the defendant into his hands so ever the same may be; ... (emphasis added).

Section 521.070 RSMo. sets forth the requirements for the bond and the minimal amount of the bond, and provides:

The bond shall be executed by the plaintiff, or some reasonable person as principal, and one or more sureties, resident house holders of the county in which the action is brought, in a sum at least double the amount sworn to in the affidavit, payable to the State of Missouri, conditioned that the plaintiff shall prosecute his action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiff and not justly due him, and pay all damages and costs that may have accrued to any defendant, garnishee or interpleader by reason of the attachment, or any process of proceedings in the suit, or by reason of any judgment or process thereon, and pay all damages and costs that may accrue to any sheriff or other sheriff by reason of action under the writ of attachment, following the instructions of the plaintiff. (emphasis added).

Chapter 521 of the Revised Statutes of Missouri sets forth the procedures and requirements for the granting of a prejudgment writ of attachment. Section 521.050 mandates the posting of a bond as a condition precedent to the issuance of a writ of attachment in all cases, except when, (1) the suit is instituted by the state or county on its own behalf, or (2) when the defendant is a nonresident of Missouri. Ms. Temple's action does not fall within these exceptions.

Attachment proceedings in Missouri are special and extraordinary proceedings [Linck v. Troll, 84 Mo.App. 49 (1899) ] and the strict compliance with the statutory provisions is virtually essential [Bryant v. Duffy, 128 Mo. 18, 30 S.W. 317 (1895) ]. When such strict compliance has not been had, the writ of attachment will be irregular and the court acquires no jurisdiction over any res. Bryant v. Duffy, supra; McCord & Nave Merc. Co. v. Bettles, 58 Mo.App. 384 (1894); See generally Cloyes v. Powder--Power Tool Corp., 125 F.Supp. 837 (W.D.Mo.1954) and Lubrication Engineers, Inc. v. Parkinson, 341 S.W.2d 876 (Mo.App.1961).

The Supreme Court of Missouri in Stevenson v. Robbins, 5 Mo. 18 (1837), decided for the first time the invalidity of a writ of attachment issued prior to the filing of a statutory bond. The Supreme Court affirmed the trial court's order quashing the writ of attachment because the writ was issued before a bond was filed and held that the circuit court committed no error in refusing to permit...