Temple v. Cochran

• Decision Date: 31 January 1850
• Parties: TEMPLE v. COCHRAN.
• Court: Missouri Supreme Court

13 Mo. 116

TEMPLE

v.COCHRAN.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM CHARITON CIRCUIT COURT.

STRINGFELLOW & LEONARD, for Appellant. The only question in the record is, what is such an “absconding or absenting,” under our attachment laws, as will subject a person's estate to that process. 1. It is sufficient if it be with intent to prevent the ordinary process of law from being served, although it may not have that effect; and if this construction be correct, the plaintiff's first seven instructions ought to have been given. They proceeded upon this interpretation of the statute, and there is nothing in the objection, that this was the issue; for the issue, is in the words of the statute and means what the words of the statute mean, and nothing more nor less. 2. But if there be no question about the intention, but only on the fact of such “an absconding or absenting,” as will prevent the service of a summons; still it is sufficient, if it be such an absconding or absenting as will defeat its service, if there be only ordinary diligence used to execute it. There need not be such an absconding or absenting, as will render the service absolutely, physically impossible. The object of the law was, to allow a suit against the estate, if a suit against the person should be prevented by the defendant's absconding or absenting himself, and the law ought to have such a reasonable construction as will make it of some practical value, not a mere trap to catch plaintiffs in. The general law of the land, only requires ordinary diligence of its officers, in their efforts to execute writs; and of course, all the attachment law requires, is such an absconding or absenting as will defeat the service of a writ, if that degree of diligence only, is exerted that the law imposes upon its officers. Here, the court instructed the jury in the words of the statute, and when the plaintiff asked an explanation of its meaning, as applicable to the case on trial, by declaring, that “the jury may find for the plaintiff, although they may find that, at the time of the making the affidavit, it was physically possible to have served the defendant with the ordinary process of the law.” The court refused the instructions and that determined the plaintiff's case. The defendant had not gone without the county, and the writ was in fact, personally served, and of course, as the Circuit Court interpreted this clause of the law, the attachment did not lie.

CLARK, for Appellee. 1. In this issue, the indebtedness of the defendant to the plaintiff was admitted, and her indebtedness to others was immaterial to the issue to be tried, consequently, the whole of the evidence rejected by the court (and for the rejection of which the appellant complains), was properly rejected. This question has been expressly decided by this court, in the case of Switzer & Harrison v. Carson & Hays, 9 Mo. R. 740. 2. The statute of this State, title Depositions, Rev. Stat. 1845, p. 416, gives every party the right to object to any deposition for incompetency or irrelevancy at the trial, in the same manner and with the like effect as if the witness was then present in court. Any rule of court, therefore, in derogation of this statutory right, is void and cannot rightfully govern the action of the court, or the rights of the parties. The rule may have been made, and in this instance was made before the passage of the act. But admitting the rule of court had precedence of the statute, yet if the evidence in the deposition was clearly irrelevant, it ought not to have been allowed by the court, though no objection was made to it, and if it had been read and contained no matter relevant to the issue, it could not properly govern the action of the jury, and therefore this point, we consider, is of small importance in this case, in any way it may be viewed. 3. To determine the correctness or incorrectness of the decision of the Circuit Court, in refusing, as well as in giving the instructions presented by both parties in this case, reference must be had to the first section of our Attachment act. The words in this afffidavit, on which the right to an attachment is predicated, are “the afflant has good reason to believe, and does believe that the defendant has absconded or absented herself from her usual place of abode in this State, so that the ordinary process of law cannot be served on her.” The evidence in this case shows, that at the time of making the affidavit, the defendant had not left the county, but to the contrary, she was then in the county, and the process was served upon her. The whole of the instructions asked by the plaintiff, contain the principle, that if the defendant intended to abscond or absent herself, to prevent the execution of process, and had left her usual place of abode with that...