State ex rel. McCracken v. Blackman

• Decision Date: 31 January 1873
• Parties: STATE to use of JUNIUS MCCRACKEN, Appellant, v. A. G. BLACKMAN, Respondent.
• Court: Missouri Supreme Court

51 Mo. 319

STATE to use of JUNIUS MCCRACKEN, Appellant,

v.A. G. BLACKMAN, Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Stone Circuit Court.

E. G. Mitchell, for Appellant.

If the bond sued on is not a good statutory one, yet it is a good voluntary and common law bond, and the respondent will not be permitted to complain. (State to the use, etc., vs. Berry, 12 Mo., 376; 7 Mo., 458; Barnes vs. Webster 16, Mo., 258.)

The breach is well assigned, (12 Mo., 376; Barnes vs. Webster, 16 Mo., 258.)

The evidence excluded was competent under the pleadings. (Hayden & Smith vs. Sample, 10 Mo., 215; State to the use of Poe vs. Thomas, 19 Mo., 613.)

The court will grant any relief consistent with the facts stated (Northcraft vs. Martin, 28 Mo., 469.)

But appellant insists that a proper judgment is prayed for. (1 W. S., 22, § 8.)

Mack & Wright, for Respondent.

The Statute (W. S., 182, § 7,) and the bond contemplate only damages and costs, which accrue by reason of the attachment. If the damages and costs turn upon the defense to the cause of action, then they are not recoverable on the attachment bond.

EWING, Judge, delivered the opinion of the court.

This is a suit on an attachment bond, commenced in the Circuit Court of Greene county and taken by change of venue to the Circuit Court of Stone county. The petition, which is in the usual form, sets out by proper averments the attachment bond with its conditions, and assigns as a breach thereof that the defendant failed to prosecute said suit with effect, but that he voluntarily dismissed the same. Then follows the averment that by means of the premises and breach of the bond as aforesaid, the plaintiff has been injured and has sustained damages in the sum of four thousand dollars. The answer admits all the material allegations of the petition, except the levy of the attachment on the goods, chattels and real estate of plaintiff. On the trial, which was by a jury, plaintiff read in evidence the answer of defendant, also the return of the Sheriff, showing a levy of the writ of attachment in the suit of McCracken against Blackman and others, on the real estate of James Blackman, the plaintiff in this suit.

The plaintiff then offered to prove by C. B. McAffee, an Attorney at Law, that he, plaintiff, had paid him seventy-five dollars as a fee in the defense of said attachment suit, and that it was necessary for the Relator to defend said suit and employ an Attorney for that purpose, and that the fee paid was reasonable. This evidence was excluded on the objection of defendant, for the reason that there were no aver ments in the petition under which the evidence would be admissible; to which exceptions were saved. The plaintiff next offered to prove that he had expended a certain sum of money in traveling from the State of Texas, in the necessary defense of said suit, which was...