State ex rel. Gilbert v. Eldridge

• Decision Date: 31 October 1877
• Citation: 65 Mo. 584
• Parties: THE STATE EX REL. GILBERT v. ELDRIDGE, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 584

THE STATE EX REL. GILBERT

v.ELDRIDGE, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Dade Circuit Court.--HON. J. D. PARKINSON Judge.

Shafer & Duckwall for appellant.

1. The damages in a suit on an attachment bond are always unliquidated; and, if the ordinary rule is to govern, the statute would be rendered nugatory.

2. The petition fails to allege that the bond, or a certified copy thereof is filed, and does not allege any excuse for failing so to do, and no testimony can be introduced under it. Bothwell v. Morgan, 37 Mo. 107.

3. The instrument filed with the petition and offered in evidence purports to be a copy of the attachment bond, but is not certified. The statute provides that certified copies of bonds taken in the course of judicial proceedings shall be evidence. Wag. Stat. vol. 1, p. 597, § 43.

4. The amended attachment bond purports to be sealed on its face, and was filed upon the motion of plaintiff to dissolve the attachment for insufficiency of the original bond, was accepted by the plaintiff as such and was approved as such by the court. It related back to the inception of the attachment proceedings and superseded the original bond. The plaintiff cannot have two securities of the same character for his damages. After the amended bond was given, the original bond became a nullity.

5. The motion in arrest should have been sustained for the reason that the petition does not allege that the instrument sued on, or a certified copy thereof, is filed with the petition, or any excuse for failing to file the same. The defect is not waived by failure to demur or answer, and can therefore be reached by motion in arrest. Bothwell v. Morgan, 37 Mo. 107.

6. The rejection of the bond sued on by the court, on the filing of a new bond, discharged the securities. Hollinsworth v. Matthews, 19 Mo. 406.

SHERWOOD, C. J.

Suit on attachment bond. Gilbert, to whose use the suit was brought, recovered judgment, and the defendants appeal, assigning divers errors for its reversal.

1. ATTACHMENT BOND: set off: unliquidated damages.

I. There was no error committed in striking out that portion of the answer relating to a breach of the covenants of a lease entered into between defendants and Gilbert, to whose use this suit is brought. Unliquidated damages are not the subject of set-off, as this court has frequently held. ( Brake v. Corning, 19 Mo. 125 and cas. cit.) The right of set-off did not exist at common law, but is purely the creature of statutory origin. (2 Bouv. Law. Dic. Tit. Set-off). Our statute respecting this right only allows its exercise where the parties are “mutually indebted,” (2 W. S. 1273, §1). The legislature has seen fit however to allow the right of set-off to be exercised in suits on attachment bonds, and “against the party to whose use the suit is brought, with the same effect as if such party were the plaintiff,” (1 W. S. p. 183 § 12). If with the same effect, then with no other effect. Had Gilbert sued defendants for a debt, no one would claim that they in such an action, could successfully assert as a set-off the unliquidated damages arising from a breach of the covenants of a lease. If they could not do so in such a case, then certainly not in the one at bar; for the statute in question has not changed the nature of the statutory right of set-off, but only extended its exercise to another class of cases, to which it did not extend prior to the act of 1853, (p. 112).

2. PRACTICE: non-filing of bond sued on.

II. As respects the sufficiency of the petition, it stated facts sufficient to constitute a cause of action, although the bond sued on was not filed with the petition, and no excuse given for non-filing. Burdsall v. Davies, 58 Mo. 138; which explains or qualifies the case of Rothwell v. Morgan, 37 Mo. 107. To the same effect is H. & St. J. R. R. Co. v....