Stevenson v. Robbins
| Decision Date | 30 September 1837 |
| Citation | 5 Mo. 18 |
| Court | Missouri Supreme Court |
| Parties | STEVENSON & HORD v. ROBBINS. |
ADAMS, for Stevenson and Hord. To reverse the order for dissolving the atttachments in this cause, the plaintiffs' counsel rely upon the following points and authorities:
1. That the Circuit Court erred in not permitting the plaintiffs to file their bond in favor of the defendant, conditioned as aforesaid. The statute requiring a bond to be filed, in the case of attachments, is not unlike the statute concerning costs in cases of non-resident plaintiffs, and in suits upon administrators' bonds. In those cases, this court have decided that a bond may be filed, for costs, even after motion to dismiss.--See Governor v. Rector, 1 Mo. R. 638; Posey v. Buckner, 3 Mo. R. 604.
2. If the first writ was null and void as an attachment, it was good as a summons; and if so, the plaintiffs had a right to have an attachment issued in aid of their suit.--See Laws of Missouri of 1837, title Attachments, article 1, section 4, page 8.
HAYDEN, DODD, and QUARLES, for Robbins.
The defendant insists in this case, 1. That the decision of the Circuit Court was right in refusing leave to file an attachment bond nunc pro tunc, as it is esteemed an act to be precedent to the writ.
2. That the court decided correctly in dismissing and quashing the several writs of attachment and the proceedings under them. For that, the first was sued out without giving a bond. That the first writ was good, as against the plaintiffs who sued it out, until avoided. And, that pending one writ executed in the same cause, a plaintiff cannot sue out another original of the same kind.
3. That the actions founded upon the petition laws in debt, no writ of attachment will lie.
Upon these points these several statutes are referred: 1. Attachment, Digest, page--. 2. Practice at Law, Digest, page--. 3. Same in Petition, Digest, page--.
On the fourth day of April, in the year eighteen hundred and thirty-seven, Stevenson and Hord filed their petition in debt, under the statutory provision, against Robbins, with an affidavit to entitle them to sue by attachment; and, on the same day, the writ of attachment, with the addition of a clause of the nature and to the effect of an ordinary summons, was issued; no bond being filed with the clerk of the Circuit Court, conditioned that the plaintiff shall prosecute his suit, &c., as is provided in the first section of the act supplementary to the act entitled an “act to provide for the recovery of debts by attachment,” passed 6th February, 1837. Afterward on the 19th day of April, the plaintiffs filed their bond, under the statute; and on the same day sued out another writ of attachment, with a clause of summons, as before, on the same petition in debt. At the next term of the Circuit Court, the plaintiff moved for leave to file a bond as of the time of issuing the writ: and the defendant also moved to quash the writ of attachment. 1. Because the writ was issued before any bond was filed. 2. Because in an action under the statute, by petition in debt, the writ of attachment could not issue. 3. Because the affidavit was sufficient. The defendant also filed a plea, in the nature of a plea in abatement, to put in issue the truth of the plaintiffs' affidavit, under the provisions of the 5th section of the 2nd article of the act of the 6th of February, 1837 above alluded to.
That part of the affidavit to which exception is taken is in these words “that it is the belief of the affiant, that the said Charles A. Robbins is about fraudulently to dispose, of his effects so as to hinder or delay his creditors.” The plea in abatement of the affidavit is, that the defendant was not about to dispose of his property, &c., so as to hinder or delay his creditors, &c. It is provided by the first section of the act of the 20th March, 1835, that where there is good reason to believe that the debtor is about fraudulently to remove his property out of the State, so as to hinder or delay his creditors, the writ of attachment may issue; and by the second section, it is provided, that to obtain this writ, the plaintiff, or some other credible person shall file an affidavit of the belief of the affiant of the existence of the fact. The affidavit is clearly defective in not stating that there was good reason to believe, and that he did believe that the defendant was about fraudulently to dispose of, &c. The good reason to believe, &c., might have been put in issue, and the plea filed by the defendant, even had it put in issue the belief of the plaintiff, would have made but an immaterial issue. The defendant has had all the benefit to be derived from an insufficient affidavit when demurred to. The attachment was dissolved, the plaintiffs having failed to file a good affidavit, as they might have done by the 37th section of the act of 1835.(a) The defendant then, by the dissolution of the attachment, has obtained all he asked for, or ought to have obtained, either on account of the neglect to file a bond...
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Weidman v. Byrne
...precedent to attachment in justices' courts. Sections 7638, 7639, 7654, 2298; 4 Cyc. 527; Jasper County v. Chenault, 38 Mo. 358; Stevenson v. Robins, 5 Mo. 18; Hargadine v. Van Horn, 72 Mo. 370; Burnett McCluey, 78 Mo. 676; Norman v. Horn, 36 Mo.App. 419; Bank v. Garton, 40 Mo.App. 113; Owe......
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...claims will be minimized. State ex rel. Froidl, supra, at 910. In fact the Froidl court quotes the following passage from Stevenson & Hord v. Robbins, 5 Mo. 18 (1837), in which the writ issued before the bond was filed: "It is unreasonable to suppose the legislature [sic] ever wished that a......
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