Tufts v. Volkening

• Citation: 27 S.W. 522
• Parties: TUFTS v. VOLKENING.
• Decision Date: 12 June 1894
• Court: Missouri Supreme Court

27 S.W. 522

TUFTS v. VOLKENING.

Supreme Court of Missouri, Division No. 2.

June 12, 1894.

ATTACHMENT — CORPORATE STOCK OF NONRESIDENT — AFFIDAVIT — PUBLICATION OF NOTICE.

1. In attachment against a nonresident, the court can order the publication of notice to defendant before his property has been seized under the attachment.

2. The interest of a person in shares of stock may be attached though the shares stand on the books in the name of another.

3. Rev. St. 1889, § 521, makes the nonresidence of defendant a ground for the issuance of a writ of attachment; section 526 provides that the affiant shall state that he "has good reason to believe, and does believe, in the existence of one of the grounds." Held, that an affidavit which alleges that affiant "has good reason to believe, and does believe, that the defendant is not a resident of this state," is sufficient.

Error to St. Louis circuit court.

Attachment by James W. Tufts against Max Volkening. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. W. Adams and E. W. Banister, for plaintiff in error. Geo. W. Taussig, for defendant in error.

SHERWOOD, J.

This cause, reported 51 Mo. App. 7, and transferred to this court by the St. Louis court of appeals, is an action on an account for balance due on a "soda fountain." The suit was begun by attachment April 11, 1892, and on the same day garnishment proceedings were instituted, and on the same day properly served on several garnishees, to wit, William Schreiber, William Schreiber, executor of Henry Volkening, and the St. Louis Railroad Company. Said garnishees were duly served according to law, and all the requisites were duly complied with, by the sheriff, to attach in their hands the goods, moneys, effects, rights, credits, benefits, choses in action, and evidences of debt, or so much thereof as would be sufficient to satisfy the debt, interest, and costs in said suit, and said garnishees were duly summoned to appear at the June term, beginning first Monday of June. On April 22d, after the service of the writs of garnishment, an order of publication was applied for, and on the same day the court ordered the defendant to be notified by publication of the commencement of the action, and that this property had been attached, which was done in the manner prescribed by law. The order of publication was inserted as required by law, the first publication appearing April 23d. On April 26th, by virtue of the same writ of attachment under which the garnishees had been summoned, the sheriff levied upon and attached the interest in 10 shares of stock of the St. Louis Railroad Company. The return of the sheriff is the following: "Executed this writ in the city of St. Louis, Mo., on the 26th day of April, 1892, by levying upon and seizing all the right, title, claim, and interest of Max Volkening, the within-named defendant, of, in, and to ten shares of the capital stock of the St. Louis Railroad Company, the same being part of a larger number of shares on the books of said company in the name of Henry Volkening, represented by certificate No. ____, issued by said railroad company in the name of Henry Volkening; and at the same time leaving with R. B. Jennings, secretary of the said St. Louis Railroad Company, a true copy of the writ, with my attested certificate thereon indorsed that I did levy upon and take such rights and shares to satisfy this writ. Said defendant cannot be found in the city of St. Louis. St. Louis, Mo., June 4, 1892. Patrick M. Staed, Sheriff, by Louis Holy, Deputy." On June 9th, default was taken against defendant, and on June 21, 1892, defendant still not appearing, final judgment was entered "that the plaintiff recover of said defendant the damages assessed, and his costs and charges herein, and have execution therefor against the property attached herein at the commencement of this suit." Among the grounds for attachment, and on which the order of publication was made, was the allegation that the affiant "has good reason to believe, and does believe, that the defendant is not a resident of this state." The judgment being by default, no bill of exceptions was preserved, and the cause went on error to the St. Louis court of appeals, to be decided on the record proper. There the judgment on circuit was affirmed.

1. The affidavit is unobjectionable in form, and is, indeed, in exact compliance with the statute. Nonresidency is the first ground for attachment prescribed by the statute (Rev. St. 1889, § 521), and a subsequent section (526) declares that the affidavit of the affiant, among other things, shall state "that he has good reason to believe, and does believe, in the existence of one or more of the causes, which according to the provisions of section 521 of this chapter would entitle the plaintiff to sue by attachment."

2. The main question,...