Stevenson v. Robbins

• Court: United States State Supreme Court of Missouri
• Citation: 5 Mo. 18
• Decision Date: 30 September 1837
• Parties: STEVENSON & HORD v. ROBBINS.

5 Mo. 18

STEVENSON & HORD
v.
ROBBINS.

Supreme Court of Missouri.

September Term, 1837.

ERROR FROM THE CIRCUIT COURT OF COOPER COUNTY.

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.

[5 Mo. 19]

Upon these points these several statutes are referred: 1. Attachment, Digest, page--. 2. Practice at Law, Digest, page--. 3. Same in Petition, Digest, page--.

TOMPKINS, J.

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...