Tamblyn v. Chicago Lead & Zinc Co.

• Decision Date: 05 February 1912
• Court: Missouri Court of Appeals
• Parties: TAMBLYN v. CHICAGO LEAD & ZINC CO.

143 S.W. 1095

TAMBLYN v. CHICAGO LEAD & ZINC CO.

Springfield Court of Appeals, Missouri.

February 5, 1912.

Rehearing Denied February 26, 1912.

1. APPEAL AND ERROR (§ 66)—JUDGMENTS APPEALABLE—FINAL JUDGMENT.

In view of Rev. St. 1909, § 2038, providing for the granting of appeals, appeals can be taken only from a final judgment or an interlocutory order when permitted by statute.

2. APPEAL AND ERROR (§ 76)—JUDGMENTS APPEALABLE — "FINAL JUDGMENT" — WHAT CONSTITUTES.

A "final judgment" is one relieving the defendant of the necessity of further appearance, and allowing him to go without day with his costs.

3. APPEAL AND ERROR (§ 78)—JUDGMENTS APPEALABLE — FINAL JUDGMENT — QUASHING ATTACHMENT.

Where, under Rev. St. 1909, § 1756, providing that suits may be instituted by filing a petition and suing out a summons against the person or of attachment against the property of defendant, an action was commenced against a nonresident by filing a petition and service of attachment only there being no personal service of summons or service by publication, an order quashing the attachment was not a final judgment and appealable, for the suit remained pending and the plaintiff might secure another attachment, or have an alias summons issued and served.

4. APPEAL AND ERROR (§ 78)—JUDGMENTS APPEALABLE—FINAL JUDGMENT—QUASHING ATTACHMENT.

Where the attachment by which an action against a nonresident was commenced was quashed, plaintiff should, if he wishes to appeal from that order, take an involuntary nonsuit with leave to move to set it aside, so that a final judgment might be entered upon such motion.

5. COURTS (§ 39)—JURISDICTION—DETERMINATION.

Questions of jurisdiction may be raised at any stage of a proceeding and in any court, and are considered by the court sua sponte.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Harry Tamblyn against the Chicago Lead & Zinc Company. From an order dissolving an attachment, plaintiff appeals. Appeal dismissed.

Horace Merritt, for appellant.

NIXON, P. J.

The appeal in this case was taken before the establishment of this court, and was allowed to the Supreme Court. The bill of exceptions was signed on November 2, 1908. On October 10, 1911, J. W. Halliburton, as amicus curiæ, filed in the Supreme Court a written statement to the effect that he was attorney for the defendant in the trial court, but had not been employed by defendant to appear in the Supreme Court; that appellant had served on him his abstract and brief in the case; but that the Supreme Court had no jurisdiction in the case for the reason that the amount involved is less than $7,500. On October 21, 1911, the Supreme Court made an order transferring the case to this court. This is an attempted appeal from an order sustaining a motion to quash a writ of attachment, and refusing to permit the plaintiff to file an amended affidavit.

Plaintiff, claiming as assignee of debts owed to some 14 of defendant's creditors, sued the defendant for the aggregate sum of $5,229.83, and sued out a writ of attachment in aid of his suit. The affidavit for attachment alleged as its sole ground that the defendant is a nonresident of the state of Missouri. The writ of attachment was issued and levied on a mining plant known as the Chicago Lead & Zinc Company in Jasper county, the return of the sheriff further reciting that he failed to find in this state a chief office or place of business of the defendant, and failed to find any officer, agent, or employé of the defendant corporation upon whom to serve the summons as commanded in the writ. The motion to quash the writ of attachment and dismiss the cause filed on November 5, 1907, states as reasons (1) that the writ of attachment is void and of no effect; (2) that the clerk of the court had no authority, legal or otherwise, to issue said writ; (3) that said writ was issued without any authority of law; and (4) that the court never acquired any jurisdiction over the defendant or its property. The defendant appeared specially for the sole purpose of filing this motion. The court sustained the motion on the authority of Farnsworth v. Railroad, 29 Mo. 75. On the next day the plaintiff appeared, and in writing moved the court to permit him to file an amended affidavit in the cause, and attached to said motion was an amended affidavit which stated the same ground for attachment, but also stated the...