Tucker v. Frederick

• Decision Date: 31 July 1859
• Citation: 28 Mo. 574
• Parties: TUCKER, Appellant, v. FREDERICK, Respondent.
• Court: Missouri Supreme Court

28 Mo. 574

TUCKER, Appellant,

v.FREDERICK, Respondent.

Supreme Court of Missouri.

July Term, 1859.

1. Where an attachment is based upon two grounds, and the plaintiff establishes one of them, it can not avail the defendant any thing to show that the other ground of attachment has no basis.

2. Declarations of the defendant in the attachment made after the attachment are admissible in his favor to explain away the effect of previous declarations.

Appeal from Kansas City Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Ryland & Son and Smith & Bouton, for appellant.

I. The court improperly admitted the statements and declarations of defendant. The third instruction asked by plaintiff was improperly refused. The second and third instructions given for defendant should have been refused; they were calculated to mislead the jury. (See 1 Mo. 341; 6 Mo. 64; 12 Mo. 381.)

Hovey, for respondent.

I. The declarations admitted could do no harm; they but corroborated the statement of plaintiff's own witness, that if defendant ever had an idea of removing her goods or changing her domicil, she had abandoned the idea before the attachment. (15 Mo. 244.) The court properly instructed the jury.

RICHARDSON, Judge, delivered the opinion of the court.

This suit was commenced by attachment on the ground that the defendant was about to remove out of this state with intent to defraud, hinder or delay her creditors, and also that she was about to remove out of the state with intent to change her domicil. The defendant, by plea, put in issue the truth of the affidavit. On the trial of the plea in abatement the plaintiff introduced evidence tending to show that, two or three days before the commencement of the suit, the defendant offered to sell the lease of the house she occupied and a portion of her furniture, and stated at the time that she intended to remove to the territory of Kansas; also, that she spoke of removing to Monticello, a town in Kansas, for the purpose of keeping a boarding-house, and that, a few days after the attachment was served, she did remove to Monticello, where she has ever since resided with her family. All the plaintiff's evidence bore on the allegation in the affidavit that the defendant was about to remove out of the state with intent to change her domicil. The defendant was allowed to prove by one witness, that, prior to the attachment, she proposed to sell out to him, and stated that she desired to apply a portion of...