Williams v. Coleman
| Decision Date | 31 January 1872 |
| Citation | 49 Mo. 325 |
| Parties | SAMUEL G. WILLIAMS, Respondent, v. S. M. COLEMAN et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court.
G. T. White, and Bland & Bland, for appellants.
The court had no power to dissolve the attachment in vacation; consequently there was no damage to plaintiff Williams occasioned by giving of the bond. The attachment could be dissolved only on motion in term time.
Ewing & Smith, for respondent.
I. The defendants are estopped from questioning the validity of the bond in any particular. (Livingston v. Hammer, 7 Bosw., N. Y., 670; Price v. Kennedy, 16 La. Ann. 78; McMillan v. Dana, 18 Cal. 339; Inbusch v. Farwell, 1 Black, 566; Heynemann v. Eder, 17 Cal. 433; Cook v. Boyd, 16 B. Monr. 556.)
II. The approval of the bond by the judge in vacation is good; yet if not, it could make no difference as to the liability of the defendants. (Jones v. The State, etc., 7 Mo. 81; Moore et al. v. The State, 9 Mo. 330; Barnes v. Webster, 16 Mo. 258.)
The plaintiff sued out a writ of attachment against defendant Coleman and levied upon real estate. In order to discharge it from the attachment lien, Coleman applied to the circuit judge in vacation to dissolve the attachment, and having given a bond under the third provision of section 48 of the attachment act (Wagn. Stat. 191), the judge ordered it to be dissolved. This suit is upon the bond thus given, and the chief defense is that the proceedings were not according to the statute, and therefore the bond is void.
It is true the statute does not contemplate an order of the judge in vacation, but rather of the court; but it does not hence follow that the obligation is void. Why is it not a good common-law bond? In consideration of its execution, the attachment proceedings were changed to a mere common suit. A common judgment was rendered, and the order for a special execution, to which the plaintiff would have been entitled, was not sought. It is not necessary to inquire whether or not he can now pursue the real estate attached. For the time he gave it up, whatever the legal effect of the dissolution and the common judgment, and surrendered the advantage of a special order to sell it, and this he did because of this bond. Its makers knew as well as he whether the dissolution was regular; and having pursuaded him to abandon the advantage of his levy in attachment, they should not be permitted now to say that the obligation...
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