Van Arsdale v. Krum

• Decision Date: 31 October 1845
• Parties: VAN ARSDALE & WARNOCK v. JOHN M. KRUM, JUDGE, &c.
• Court: Missouri Supreme Court

9 Mo. 397

VAN ARSDALE & WARNOCK

v.JOHN M. KRUM, JUDGE, &c.

Supreme Court of Missouri.

October Term, 1845.

GOODE & CORNICK, for Petitioners. 1st. The attachment bond of Richards, Bassett & Aborn, was substantially defective. See Session acts of 1837, p. 8. § 1; Session acts of 1839, p. 7, § 3, and p. 8, § 19. 2nd. It is such a defect as cannot be amended. See Mantz v. Hendley, 2 Hen. & Mun. 308; McDaniel v. Sappington, Hardin's R. 94; Stephenson v. Robbins, 5 Mo. R. 21; Caldwell v. McKee, 8 Mo. R. 335; Bridgeport v. Steamboat Elk, 6 Mo. R. 356; Graham v. Bradley, 7 Mo. R. 282; Session acts of 1839, p. 7, §§ 13, 14, 15. 3rd. It is a defect which the petitioners can take advantage of. See Mantz v. Hendley, 2 Hen. & Mun. 314; Alexander v. Haden, 5 Mo. R. 228; Fairbanks v. Stanley, 18 Maine R. 299; Berry v. Spear, 1 Shepley, 187; Buckman v. Buckman, 4 N. Hamp. R. 319; Clark v. Roberts, Breeze R. 222; Lea v. Vail, 2 Scam. R. 473.

MCBRIDE, J.

Van Arsdale & Warnock filed their petition in this court praying for a mandamus upon John M. Krum, who is judge of the Circuit Court for St. Louis county. The petition sets out that on the 27th January, 1845, an attachment was issued from the office of the clerk of the Circuit Court of St. Louis county, in favor of Richards, Bassett & Aborn, against John Berlin; that prior to the 31st January, 1845, five other writs of attachment were issued from the same office, in favor of other creditors, against Berlin, and that on the said 31st January, the petitioners sued out their writ of attachment. The attachments were all levied by the sheriff of St. Louis county on the same property of the defendant, which being perishable, was sold under an order of the court; that the bonds executed by the plaintiffs, in five of the cases are defective, not being conditioned as the law prescribes; that the other attachments having been issued prior to theirs, and the proceeds of the sale not being sufficient to satisfy them, the petitioners are in danger of losing their demand, unless those attachments in which were filed defective bonds, be quashed.

That on the 10th May, 1845, the defendant, Berlin, filed his motion in the Circuit Court to quash the attachment issued in favor of Richards, Bassett & Aborn against him, for the reason that the bond filed in the case is defective, thereupon the plaintiffs filed a cross-motion for leave to amend their bond. The court ordered that the plaintiff's file within ten days therefrom a good and sufficient bond, or otherwise the attachment would be quashed. The amended bond was filed on the 12th May, 1845. The defendant, Berlin, excepted to the action of the court in overuling his motion and in permitting an amended bond to be filed.

That at some period of the proceedings, not shown by the record, but perhaps prior to the 1st July, 1845, the petitioners filed a motion to quash the attachments in the cases in which defective bonds had been filed, the suit of Richards, Bassett & Aborn being one of them; which motion was, on the 1st July, overruled by the court; they thereupon excepted and preserved the facts by a bill of exceptions, which they refer to and make a part of their petition.

The following points are presented for the consideration of this court: 1st. The bond of Richards, Bassett & Aborn was substantially defective. 2nd. It is such a defect as cannot be amended. 3rd. The petitioners can take advantage of the defect.

The first two points will be considered together. The proceedings in the case of Richards, Bassett & Aborn, were had under the provisions of an act of the General Assembly of this State, entitled “An act to amend an act to provide for the Recovery of Debts by Attachment,” approved February 13th, 1839. Sess. acts 1838-9, p. 6.

The first section provides that “any creditor who shall file an affidavit and bond, as hereinafter required, may sue his debtor by attachment in the following cases,” &c

The third section provides that “the bond to be given by the plaintiff shall be executed by him, or some responsible person for him, as principal, with one or more securities, resident householders, of the county, in which the action is to be brought, in a sum at least double the amount of the demand sworn to, payable to the State of Missouri, conditioned that the plaintiff shall prosecute his action without delay, and with effect, and shall pay all damages which may accrue to any defendant or garnishee, by reason of the attachment, or any process or proceeding in the suit.”

The concluding sentence of the first bond, filed by the plaintiffs was as follows: “That if the said plaintiffs shall prosecute their said suit with effect, and without delay, and shall pay all damages which may accrue to the said defendant, or to any garnishee in said suit, in consequence of said attachment, then this obligation to be void, otherwise to remain in full force,” omitting as will be seen, after the word attachment, the words, “or any process or proceeding in the suit.”

The plaintiff, by his motion for leave to amend his bond, admitted its insufficiency; the question then arises, upon the power of the court, to permit the amendment asked for by the plaintiff.

By the 13th section of the act it is enacted that “if at any time pending a suit in which any property or effects shall have been attached, it shall appear to the court or justice before whom the action is pending, that the bond given by the plaintiff is insufficient, or that any security therein has died, or removed from the State, or has become, or is likely to become insolvent, the court or justice may order another bond, and such further security to be given, as shall seem necessary; five days' previous notice being given to the plaintiff or his agent, or attorney, of the application for such order.”

The foregoing section would appear to settle the question, as to the right of the court to permit the bond to be amended; but the petitioner's counsel contend, that amendments of the character permitted by the court, are not such as are contemplated by the above section; that the insufficiency must be for the reason either, that the security has died, removed from the State, or has become or is about to become insolvent. If such were the intention of the law makers, it would have been extremely easy and convenient for them so to have framed the section, omitting the words “that the bond given by the plaintiff is insufficient.” Finding those words, however, in the statute, and presuming that they...