Bland v. Schott

5 Mo. 213

• Court: Supreme Court of Missouri
• Decided: April 15, 1838
• Status: Published

Opinion

Opinion delivered by

McGirk, Judge.

Blarul brought an attachment declaring, in assumpsit, against Schott.

The writ commands the sheriff to attach the ant by his goods, lands, &c., that lie be and appear to answer the plaintiff his demand. The sheriff returned the writ attaching some goods, &c., but did not summon the defendant; nor did he in his return say any thing on that point. The counsel for Schott moved the court dissolve the attachment, for causes in the motion stated, which the court did; and the court also dismissed the suit.

Mr. O. fi. Allen, counsel tor the plaintiff, contends the court had no power to dismiss the suit, but insists that the action of assumpsit should have been allowed to stand, and that the court, though it might dissolve the attachment, cannot dismiss a suit without cause, none can be supposed to exist, and the judgment dismissal must be reversed.

Held that, there having been no sumpsitfthe court did not err in missing the suit,

On the other side, the counsel contended, that if it were true in this case that there had been a summons in assumpsit, the court would be doing wrong to dismiss the suit because the attachment was dissolved; But in this case there is no summons nor clause of summons. I am well satisfied the fact is so. The writ commands the sheriff to attach the defendant, by his lands, &e., that he be and appear at the circuit court, &c. This language does not amount t'o a command to the sheriff to any one. It is therefore clear, the attachment being gone, nothing remained; and if the court had not dismissed the cause, nothing could ever have been made out of it; no further proceeding could have taken place. I am therefore of opinion there was good cause to dismiss the suit.

The judgment is affirmed,with costs, the other judges-concurring herein.