Hargadine v. Van Horn

72 Mo. 370

Opinions

Napton, J.

This was an action of ejectment. The plaintiff bought under a sale on an attachment, and the only-question upon which our opinion is required is, whether an attachment issued without any affidavit is a nullity, or is merely an error, not affecting a purchaser in a collateral proceeding. This question was discussed and decided in the case of Bray v. McClury, 55 Mo. 128. That case was decided by a divided court, the majority of the judges holding that an affidavit in conformity to the law was essential to give the court jurisdiction. In that case there was an affidavit, but it was defective in not stating that there was any debt due from the defendant. In the present case there was no affidavit at all, that is, the paper described and referred to by the clerk as the one upon which the writ of attachment issued, was not signed by any one, and was, therefore, no affidavit. We are unable to see how any presumption can be entertained against the record that there was some other affidavit than the paper purporting to be one in the record, and as we concur in the opinion then rendered by Judge Adams, the objection is a fatal one to plaintiff’s title, without considering the other points in the case. Judgment is, therefore, reversed.

Judges Hough and Henry concur. Sherwood, O. J., and Norton, J., dissent.