Urton v. Sherlock
| Decision Date | 31 October 1875 |
| Parties | ALFRED URTON, Plaintiff in Error, v. NICK SHERLOCK, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to Bates County Circuit Court.
Armstrong & Johnson, for Plaintiff in Error.
Bogges & Sloan, for Defendant in Error.
Action for $1,000 damages brought by attachment before a justice of the peace, in consequence of losses suffered by the introduction into this State of a certain description of cattle, between the first day of March and the first day of November.
The property of the defendants was attached, and one of them (Cantrell) was served personally with process. As to him, judgment by default was taken, and publication ordered as to the other two defendants, Shirlock and Campbell. The defendants thus ordered to be notified, not appearing at the time specified in the order, judgment by default was taken against them also, and the default was made final against all of the defendants. They filed their motion to set aside the judgment by default, but failing in this, Campbell alone appealed to the circuit court, when on the motion of all the defendants the court dismissed the cause. The grounds of the motion were lack of jurisdiction by the justice over the persons of the defendants and the subject matter of action.
In attachment cases originating before a justice of the peace, when a defendant cannot be summoned, he is to be notified by four advertisements set up at as many public places in the county. The proof that these notices have been thus posted is to be made either by the return of the constable or the affidavit of a competent witness. (Wagn. Stat., 196, §§ 76 and 77.) In this case, although the docket of the justice recites that the notices “were posted according to law,” yet this recital finds no support in the transcript of the proceeding nor in the original papers filed in the cause, as neither return of the constable nor affidavit of witness announces the service of the notice. It may be that the advertisements were posted in accordance with law, but we are certainly not at liberty to presume this, when the justice certifies that he has transmitted to the circuit court all that which the law requires to be thus certified and transmitted, and nothing in the shape of return or affidavit evidences the fact of notice given. But it by no means follows from the above premises that the action of the circuit court should receive our sanction. So far as Campbell...
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Associated Holding Co. v. W. B. Kelley & Co.
...rights of the defendant, Fairleigh Realty Company, cannot be affected by the decision of this court. Fagan v. Long, 30 Mo. 222; Urton v. Sherlock, 61 Mo. 257; Gray Dryden, 79 Mo. 106; Peoples Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W.2d 585; Smith v. Anglo-California Trust Co., 271 P. 9......
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Tapee v. Varley-Wolter Company
... ... interpleader still remains in full force and effect." ... [Citing Fischer v. Anslyn, 30 Mo.App. 316; Urton ... v. Sherlock, 61 Mo. 257; Gray v. Dryden, 79 Mo ... 106; Roberts v. Shepherd, 96 Mo.App. 698.] These are ... cases holding, in substance, that ... ...
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Associated Holding Co. v. Kelley & Co.
...rights of the defendant, Fairleigh Realty Company, cannot be affected by the decision of this court. Fagan v. Long, 30 Mo. 222; Urton v. Sherlock, 61 Mo. 257; Gray v. Dryden, 79 Mo. 106; Peoples Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W. (2d) 585; Smith v. Anglo-California Trust Co., 27......
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