Veale v. Bourne

• Decision Date: 25 August 1930
• Citation: 30 S.W.2d 793,224 Mo.App. 614
• Parties: JOS. P. VEALE, APPELLANT, v. CAROLINE BOURNE, RESPONDENT
• Court: Missouri Court of Appeals

30 S.W.2d 793

224 Mo.App. 614

JOS. P. VEALE, APPELLANT, v. CAROLINE BOURNE, RESPONDENT

Court of Appeals of Missouri, Springfield

August 25, 1930

Appeal from Barton County Circuit Court.--Hon. Chas. A. Hendricks Judge.

REVERSED.

Judgment reversed.

Thos W. Martin and E. L. Moore for appellant.

(1) Even where a bond is given, the general practice is a suit on the bond, contemplated by the statute. Sec. 1735, R. S. 1919; State to use v. Fargo, 151 Mo. 280; State ex rel. v. Reynolds, 137 Mo.App. 261; 6 C. J. 507, par 1203. (2) And in the absence of a bond, certainly a suit for wrongful attachment must be brought, if any damages have been suffered. 6 C. J. 498, pars. 1176 and 516, par. 1249; Talbott v. Plaster Co., 151 Mo.App. 538. (3) It is authorized on a forthcoming bond by our statute, but we do not find on the attachment bond; and even on the forthcoming bond there must be fifteen days' notice, or the judgment is void. Secs. 1778-9, R. S. 1919; Roach v. Burnes, 33 Mo. 319; Sevier v. Roddie, 51 Mo. 585. (4) Such a summary proceeding deprives plaintiff of his right of set-off or counterclaim, including the cause of action sued on. Sec. 1736, R. S. 1919; State ex rel. v. F. & G. Co., 135 Mo.App. 165; State ex rel. v. Mathieson, 207 Mo.App. 681.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is an appeal from a judgment for attorney fees growing out of an attachment suit. The record shows that plaintiff filed suit the 5th day of August, 1929, on a note, and also filed his affidavit for attachment, without bond, alleging as one of the grounds for attachment that defendant was a non-resident of the State of Missouri. Thereafter defendant entered his appearance, filed his answer and also a plea in abatement seeking the dissolution of the attachment. At the September term, 1929, the case coming on for trial, defendant announced ready and the court ordered that the case proceed to trial; but plaintiff, not deeming it trial term, was not ready and thereupon dismissed said cause, together with the attachment. Whereupon the court heard evidence on the value of defendant's attorney fees and entered an order and judgment taxing the sum of $ 50 in favor of defendant for defending the suit. Plaintiff has appealed from this judgment.

Error is assigned by reason of the trial court's action in hearing evidence on the value of defendant's attorney fees and in taxing $ 50 against defendant.

It is urged that the court had no power to tax attorney fees as costs on motion when the attachment was dissolved. We must uphold this contention. Such proceeding is not authorized by our attachment statute. Under section 1729, Revised Statutes 1919, a plaintiff may file a suit by attachment against a non-resident without giving bond as required in other cases. The section further provides that where such suit is without bond, the attachment shall be dissolved as of course upon such non-resident defendant entering his appearance and filing his answer. But no provision is made for taxing expenses or attorney fees upon such dissolution. Even when a bond is given, the statute provides for suit thereon, and it is evident that the lawmakers did not contemplate permitting the taxing of defendant's attorney fees against plaintiff on mere motion of defendant in the original...