State v. Yount

• Decision Date: 31 December 1914
• Docket Number: No. 1331.,1331.
• Citation: 172 S.W. 431,186 Mo. App. 258
• Parties: STATE ex rel. PINKLEY v. YOUNT et al.
• Court: Missouri Court of Appeals

172 S.W. 431

186 Mo. A. 258

STATE ex rel. PINKLEY v. YOUNT et al.

No. 1331.

Springfield Court of Appeals. Missouri.

December 31, 1914.

Rehearing Denied January 19, 1915.

1. ATTACHMENT (§ 331) — BOND — DEFECTS — VARIANCE IN NAME.

Where the caption of an attachment bond correctly stated the plaintiff's first name as "Bessie," but in the condition it appeared as "Bess," the attachment defendant can recover against the sureties on the bond after the dissolution of the attachment, in the absence of a showing that there had ever been another action in the county by a person bearing the name stated in the condition.

2. EVIDENCE (§ 183) — SECONDARY EVIDENCE — FOUNDATION.

Where it was shown that the records in an attachment were not in the office of the clerk, who held a receipt for them, signed by the plaintiff's attorney, who had since died, and whose administrator testified that the papers could not be found among the attorney's effects, there was no error in admitting secondary evidence of the contents of the record.

3. EVIDENCE (§ 183) — DISCRETION OF COURT — SECONDARY EVIDENCE — PRELIMINARY PROOF OF LOSS.

It is largely within the discretion of the trial court whether sufficient proof of the loss of a written instrument had been made to authorize the admission of secondary evidence.

4. ATTACHMENT (§ 338) — LIABILITY ON BOND — EXTENT.

Where attachment has been dissolved by judgment for the defendant on the merits, the latter may recover from the sureties on the bond for loss of time, traveling expenses, cost of taking depositions, and attorney's fees for defending the attachment.

5. ATTACHMENT (§ 331) — BOND — CONDITION — "WITH EFFECT."

A condition of an attachment bond that the plaintiff would prosecute her action "with effect" means with success.

Appeal from Circuit Court, New Madrid County; Frank Kelly, Judge.

Action by the State, on the relation of and to use of T. C. Pinkley, against Bessie Yount and others. Judgment for the plaintiff, and defendants appeal. Affirmed.

Oliver & Oliver, of Cape Girardeau, for appellants. Thomas Gallivan, of New Madrid, and R. L. Ward and L. L. Collins, both of Caruthersville, for respondent.

FARRINGTON, J.

This is a suit on an attachment bond in which the relator, T. C. Pinkley, recovered a judgment for $916.30. The verdict of the jury was as follows:

"We, the jury, find the issues for the plaintiff, relator, and assess his damages as follows:

                Plaintiff's expenses traveling and hotel
                 bill .....................................   $ 85 30
                Plaintiff's loss of time ..................     60 00
                For taking depositions ....................     21 00
                For attorney fees for defending attachment...  750 00
                

"And find the total amount of plaintiff's damages to be $916.30."

Judgment thereon was rendered, and defendants appealed.

A suit was begun by Bessie Yount against the relator herein seeking to recover damages for slander alleged to have been uttered by relator, and a writ of attachment was sued out in aid of the action, and an attachment bond given in the sum of $10,000, signed by "Bessie" Yount and a number of sureties (the appellants herein), which bond was approved by the circuit clerk. The caption of the bond was as follows: "Bessie Yount, Plaintiff, against T. C. Pinkley, Defendant — Attachment in a Civil Action." In the condition of the bond it is recited that "whereas Bess Yount, as plaintiff, is about to commence a suit by attachment," etc. The bond is in the form prescribed by statute, and provides that plaintiff "shall prosecute her action without delay, and with effect."

All the papers in the slander and attachment suit were missing from the circuit clerk's office, except the attachment bond and a few unimportant papers connected with the case which had been placed in the safe by the clerk. In the file where these attachment papers were usually kept was found the receipt of James V. Conran, the attorney for Bessie Yount in the slander suit. The evidence showed that he was dead at the time of this trial. The circuit clerk testified that he had searched his office and was unable to find the papers. Likewise M. J. Conran testified that he was the administrator of the estate of James V. Conran, and that he had been unable to find these papers.

Relator offered in evidence the record entries in the circuit clerk's office showing that an answer was filed in the slander suit on September 18th, and that on the same day a plea in abatement was filed. It was shown by an entry made on September 28th that the court made an order striking from the files the plea in abatement, reciting that the defendant, having answered to the merits, waived the plea in abatement, and reciting that the attachment would be sustained. This left the slander suit standing for trial on the merits with the attachment sustained.

The defendant employed a firm of lawyers in New Madrid county and a firm in ...