Thompson v. Smith

• Decision Date: 31 July 1844
• Citation: 8 Mo. 723
• Parties: THOMPSON v. SMITH & CAVENDER.
• Court: Missouri Supreme Court

8 Mo. 723

THOMPSON

v.SMITH & CAVENDER.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO ST. LOUIS CIRCUIT COURT.

SPALDING and TIFFANY, for Plaintiff. 1. This proceeding by motion on a bond, for the forthcoming of property attached, is under the act of Assembly of February 15, 1841. Acts of 1840-1, p. 15. 2. The act was prospective, and does not authorize judgments on such bonds by motion, except in cases where the judgment in the original suit shall be rendered after the passage of the act. See the phraseology of the act. 3. That act does not apply to bonds which had been given under statutes not then in force, its language expressly confining the summary remedy there furnished to bonds given as now authorized by law. 1st. The bond in question was taken while the act in Rev. Code, p. 75, was the only law on the subject of Attachments. See §§ 14, 37. 2nd. The act was modified by act of February 6, 1837, p. 8, § 2, authorizing the giving of bonds for the property, different from any bond under the former law, which last act is still in force and was in force in 1841. 4. The bond in question was not authorized by any law, was a mere voluntary bond, and of course not embraced in the act of 1841, giving the remedy by motion. See Rev. Code, p. 78, § 14; ibid. p. 80, § 37; acts of 1836-7, p. 8, § 2.

HOLMES, for Defendant. 1. The act of 1841, on this subject, is a remedial statute; and was designed to furnish a speedy remedy upon bonds of this kind, and to obviate the necessity of a suit upon the bond, which would always be attended with delay trouble and expense. Acts of 1841, p. 15. 2. This bond came within the terms and policy of that act, as a bond continuing in force, and given as theretofore authorized by law. Acts of 1841, p. 15.

TOMPKINS, J.

In December, 1836, an attachment at the suit of James Smith, William H. Smith, and John Cavender, plaintiffs, against Charles Gillaspie and Samuel Cover, defendants, was levied on fifteen sacks of coffee, which were released from the attachment by the sheriff, on his taking a bond conditioned, that if the effects so attached and restored should be produced and delivered, subject to the judgment of the court, &c., then the obligation to be, void, otherwise it should remain in full force.

On the 2nd day of November, 1843, a rule was served on John S. Thompson, one of the obligors in said bond, requiring him and Samuel Cover, the other obligor, to produce the coffee, and deliver it to the sheriff on the third Monday of that month. On the 5th day of December, 1843, a motion was filed by the said Smiths and Cavender, for judgment on said bond against Cover and Thompson, the principal and security in the bond. Notice was served on Thompson only; and on the 22nd of December, judgment was rendered on this motion, in favor of Smith, Smith and Cavender, against John S. Thompson, for $124 63, debt, and $58 87, damages. To reverse this judgment, Thompson has sued out this writ of error.

On the trial of the motion, the plaintiffs gave in evidence the...