State v. Reynolds

• Decision Date: 23 March 1909
• Citation: 137 Mo. App. 261,117 S.W. 653
• Parties: STATE ex rel. RIFE v. REYNOLDS et al.
• Court: Missouri Court of Appeals

117 S.W. 653

137 Mo. App. 261

STATE ex rel. RIFE v. REYNOLDS et al.

St. Louis Court of Appeals. Missouri.

March 23, 1909.

1. ATTACHMENT (§ 349) — LIABILITIES ON BOND—ACTIONS—PLEADING.

A petition, in an action for breach of an attachment bond, conditioned for the payment of damages as provided by Rev. St. 1899, § 372 (Ann. St. 1906, p. 482), which fails to aver the nonpayment of the damages sustained, is bad on demurrer.

2. PLEADING (§ 34) — DEFECTS AND OBJECTIONS— CONSTRUCTION.

The sufficiency of a petition, challenged by oral objection at the trial on the ground that it fails to state a cause of action, is determined by the rules which obtain as to such a question after verdict and judgment, and, although general averments are omitted, all matters will be allowed in aid of the petition as intended by the pleader, which may be implied by reasonable construction of the pleadings.

3. PLEADING (§ 433) — DEFECTS AND OBJECTIONS—AIDER BY VERDICT—DEFECTS IN PETITION.

Where there is no demurrer to a petition in a suit on an attachment bond for plaintiff's failure to aver nonpayment of damages sustained, but the sufficiency of the pleading is challenged by objection at the trial on the ground that it fails to state a cause of action, the omission of the averment is cured by the verdict under the statute of jeofails (Rev. St. 1899, § 672 [Ann. St. 1906, p. 686]), commanding that no judgment shall be reversed for the omission of an averment for which a demurrer could have been maintained, or without proof of which the verdict could not have been given.

4. ATTACHMENT (§ 353) — LIABILITIES ON BONDS—JUDGMENT.

The judgment in an action on an attachment bond should be for the penalty of the bond to be satisfied by the payment of the damages assessed, with interest thereon from the date of the judgment and costs.

5. APPEAL AND ERROR (§ 1170)—DETERMINATION OF CAUSE—REVERSAL—TECHNICAL DEFECTS.

A judgment for the amount of damages assessed in an action on an attachment bond, instead of a judgment for the penalty of the bond, to be satisfied by the payment of the damages assessed, is irregular; but the irregularity can be corrected by the appellate court under Rev. St. 1899, §§ 865, 866 (Ann. St. 1906, pp. 812, 815), commanding that a judgment shall not be reversed except for error materially affecting the merits, and authorizing the judgment to be given on appeal as it should have been in the trial court.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by the State, on the relation of Mary M. Rife, against Jesse Reynolds and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

L. R. Thomason, for appellants. Thos. F. Lane, N. C. Whaley, and D. W. Hill, for respondent.

NORTONI, J.

This is a suit on an attachment bond. Plaintiff recovered, and the defendant appeals.

During the progress of the trial, the suit was dismissed as to the surety and the cause proceeded to judgment against the defendant, who is the principal obligor in the bond. It appears the defendant instituted an attachment suit in which the present plaintiff was made defendant, and the attachment writ was levied upon a considerable amount of property owned by her. Plaintiff employed counsel and defended the attachment in the circuit court, in which action she prevailed, and judgment was given therein in her favor. She paid her counsel about $300 attorney's fees in defending the attachment suit. Having defeated the attachment suit, plaintiff instituted this action on the bond given by defendant, who was plaintiff in the attachment, to recover the amount expended by her in defending the attachment. The attachment bond is in the penal sum of $300. In conformity with section 372, Rev. St. 1899 (Ann. St. 1906, p. 482), it is conditioned, among other things, that the plaintiff shall prosecute his action without delay and with effect, and pay all damages and costs that may accrue to any defendant by reason of the attachment, or any process or proceeding in the suit, or by any judgment or process thereon. Although a portion of the evidence seems to be preserved and before us in the bill of exceptions, all of the arguments advanced for a reversal of the judgment pertain to matters appearing on the face of the record proper.

The evidence is ample to support the judgment. The first and principal argument advanced for a reversal is leveled against the sufficiency of the petition. It is said it fails to state a cause of action for the reason that it does not pointedly allege nonpayment of the damages accrued to the plaintiff herein. The petition recites the facts pertaining to the institution of the attachment suit by the present defendant in which the present plaintiff was made defendant, and recites the execution of the bond in suit, in aid of the attachment therein sued out. The obligation and statutory conditions of the bond are then copied in the petition in hæc verba, and it is alleged that there have been several breaches of said bond, in that the plaintiff failed to prosecute said attachment suit with effect; the same having been finally determined in favor of the present plaintiff in the circuit court. It is averred therein that the defendant caused to be attached under such attachment suit plaintiff's separate personal property of the value of $3,500, and that therefore it became necessary for her to employ attorneys and defend against the same in the circuit court of Butler county, and that to make her defense thereto plaintiff was compelled to and did pay her attorneys $300, whereby it is alleged "plaintiff has been damaged in the sum of $300," after which follows a prayer that a judgment be given plaintiff and against the defendant for the penalty of the bond, etc., and that execution issue to satisfy the same. It is very true there is no formal allegation to be found in the petition by which the plaintiff alleges nonpayment of the damages alleged to have accrued to her by virtue of the attachment proceeding, and there is no doubt, had this question been presented by demurrer to the petition, it would have been well taken. That is to say, the plaintiff, in suing on a breach of the obligation of the bond to pay such damages as may accrue, ought to allege, of course, their nonpayment in order to state facts constituting a breach of this condition. Mr. Drake, in his valuable work on Attachments, in speaking of a suit on...