East v. Whitmer

Missouri Court of Appeals

East v. Whitmer

84 Mo. App. 223, 1900 Mo. App. LEXIS 38

DecidedApril 24, 1900

StatusPublished

This text of 84 Mo. App. 223 (East v. Whitmer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

East v. Whitmer, 84 Mo. App. 223, 1900 Mo. App. LEXIS 38 (Mo. Ct. App. 1900).

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Opinion

BOND, J.

Plaintiff brought an attachment suit on a note against defendant before a justice on the sixteenth of January, 1899. The ground of attachment was “that de[225]*225fondant had absented himself from his usual place of abodle in this state so the ordinary process of law could not be served upon him.” On the twenty-second of January, 1899, defendant returned from an absence from the state, which begun on the twentieth of December, 1898, and pleaded in abatement to the attachment. After trial in the justice’s court there was an appeal to the circuit court, where plaintiff had judgment on the merits, but was defeated on the attachment, from which he appealed to this court.

The only error alleged grows out of an instruction given by the court, in which the jury were told that when the suit was begun the justice before whom it was instituted had the power to fix the return day of an ordinary summons (had one been issued in the action), from ten to seventy-four days after the issuing of such process, which would then have to be served ten days before the particular return day fixed by the justice. The instruction then submitted to the jury the issue under the evidence whether a suit begun by an ordinary summons on the day of the attachment and made returnable in a reasonable time thereafter (within the limit allowed to set such returns) could have been personally served upon defendant ten days before the time it was made returnable. There was no error in this direction under the statute then applicable. R. S. 1889, sec. 6145; Temple v. Cochran, 13 Mo. 119; Kingsland v. Robinson, 15 Mo. 657; Ellington v. Moore, 17 Mo. 424; Chariton Co. v. Moberly, 59 Mo. 238. It is conceded by appellant that defendant returned from an absence on a trip to his usual place of abode on January 22, 1899, or within six days after suit was brought. Now, if an ordinary action of debt had been brought against him on the sixteenth of January ánd made returnable (as the justice would have had full power to do) seventeen days thereafter, defendant might have been personally served by [226]*226ordinary process to answer such action. Hence it is clear there was ample evidence to warrant the finding of the jury for defendant under an instruction which did not incorrectly state the law applicable to the issues. The judgment is therefore affirmed.

Judge Bland concurs, Judge Biggs absent.

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BOND, J.

Plaintiff brought an attachment suit on a note against defendant before a justice on the sixteenth of January, 1899. The ground of attachment was “that de[225]*225fondant had absented himself from his usual place of abodle in this state so the ordinary process of law could not be served upon him.” On the twenty-second of January, 1899, defendant returned from an absence from the state, which begun on the twentieth of December, 1898, and pleaded in abatement to the attachment. After trial in the justice’s court there was an appeal to the circuit court, where plaintiff had judgment on the merits, but was defeated on the attachment, from which he appealed to this court.

The only error alleged grows out of an instruction given by the court, in which the jury were told that when the suit was begun the justice before whom it was instituted had the power to fix the return day of an ordinary summons (had one been issued in the action), from ten to seventy-four days after the issuing of such process, which would then have to be served ten days before the particular return day fixed by the justice. The instruction then submitted to the jury the issue under the evidence whether a suit begun by an ordinary summons on the day of the attachment and made returnable in a reasonable time thereafter (within the limit allowed to set such returns) could have been personally served upon defendant ten days before the time it was made returnable. There was no error in this direction under the statute then applicable. R. S. 1889, sec. 6145; Temple v. Cochran, 13 Mo. 119; Kingsland v. Robinson, 15 Mo. 657; Ellington v. Moore, 17 Mo. 424; Chariton Co. v. Moberly, 59 Mo. 238. It is conceded by appellant that defendant returned from an absence on a trip to his usual place of abode on January 22, 1899, or within six days after suit was brought. Now, if an ordinary action of debt had been brought against him on the sixteenth of January ánd made returnable (as the justice would have had full power to do) seventeen days thereafter, defendant might have been personally served by [226]*226ordinary process to answer such action. Hence it is clear there was ample evidence to warrant the finding of the jury for defendant under an instruction which did not incorrectly state the law applicable to the issues. The judgment is therefore affirmed.

Judge Bland concurs, Judge Biggs absent.

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84 Mo. App. 223, 1900 Mo. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-v-whitmer-moctapp-1900.

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