Tamblyn v. Chicago Lead & Zinc Company

• Citation: 143 S.W. 1095,161 Mo.App. 296
• Parties: HARRY TAMBLYN, Appellant, v. CHICAGO LEAD & ZINC COMPANY, Respondent
• Decision Date: 05 February 1912
• Court: Court of Appeal of Missouri (US)

143 S.W. 1095

161 Mo.App. 296

HARRY TAMBLYN, Appellant, v. CHICAGO LEAD & ZINC COMPANY, Respondent

Court of Appeals of Missouri, Springfield

February 5, 1912

Moton for Rehearing Overruled, February 26, 1912.

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

APPEAL DISMISSED.

Horace Merritt for appellant.

McReynolds & Halliburton for respondent.

OPINION

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 curiae, 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 fourteen 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 non-resident 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 employee 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 additional ground "that the defendant is a corporation whose chief office or place of business is out of this state." This motion was denied, and plaintiff appealed.

The only judgment entered in this case is as follows:

"Now comes on for hearing the motion to set aside order of sale and to quash the writ of attachment herein; said motion is taken up and being seen, heard and fully understood by the court the same is sustained.

"It is therefore ordered and adjudged by the court that the attachment herein be quashed and that the order of sale heretofore entered herein be and the same is hereby set aside and for naught held and esteemed."

It will be seen that the court only disposed of the attachment and not of the suit itself. To be effective, an appeal must operate on a final judgment, and not upon something less than a final judgment. A party cannot appeal his cause by piecemeal. [Jones v. Evans, 80 Mo. 565.] Nor from an interlocutory order unless there is a permissive statute. The order of the court on the motion to quash the attachment was not the final disposition of the entire case in the court below; it was not a final judgment of the cause, but simply a judgment on the motion to quash the attachment leaving the main issue standing as before. [Wirt v. Dinan, 41 Mo.App 236, 240.] "It has been long and well understood in this state that there can be but one final judgment in a cause, and that such final judgment cannot be composed of fragments. As to the defendant the judgment must relieve him from further appearance as to the entire...