Orear v. Clough

Supreme Court of Missouri

Orear v. Clough

52 Mo. 55

CourtSupreme Court of Missouri

DecidedFebruary 15, 1873

StatusPublished

Cited by10 cases

This text of 52 Mo. 55 (Orear v. Clough) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Orear v. Clough, 52 Mo. 55 (Mo. 1873).

Pincite

Opinion

Adams, Judge,

delivel-ed the opinion of the court.

This was a suit by attachment against the defendant as a non-resident of this State. The writ was served on the defendant in the State of Kansas under the 18th section of the 4th article of the Practice Act (2 W. S., 1009,) by delivering to the defendant in the State of Kansas a copy of the petition and writ. Several garnishees were summoned and answered denying indebtedness, and a judgment in favor of the defendant against James S. Bryant rendered in the Platte Circuit Court had been attached, and the sheriff who sold lands under this judgment was garnished.

It also appears from the record that the defendant appeared in the cause and had the case put at the foot of the docket.

When the case was thus standing before the court an entry was made dismissing the cause for want of jurisdiction and rendering final judgment against the plaintiff for costs.

The plaintiff moved the court to set aside the dismissal and judgment and to reinstate the case, and the court overruled this motion and the plaintiff duly excepted and has brought the case here by appeal.

The assumption that the court had no jurisdiction over the defendant, as the record stands before us, is without founda[57]*57tion. Iiis appearance to have the case put at the foot of the docket gave the court such jurisdiction as to render a personal judgment against him. Besides, the service of the writ and petition in Kansas was equivalent to an order of publication.» His property was also attached, that is, garnishees had been summoned and a judgment in his favor attached, and the proceedings against the garnishees were still pending and undetermined.

Whether they owned anything, or not, or whether the judgment that had been attached was his property, or had been transferred to an innocent purchaser, were matters still to be tried. There was sufficient jurisdiction over the defendant to hold him till a final trial of the matters in litigation could be had.

In my opinion the court erred in dismissing the case, and for this reason the judgment will be reversed and the cause remanded.

The other Judges concur.

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Adams, Judge,

delivel-ed the opinion of the court.

This was a suit by attachment against the defendant as a non-resident of this State. The writ was served on the defendant in the State of Kansas under the 18th section of the 4th article of the Practice Act (2 W. S., 1009,) by delivering to the defendant in the State of Kansas a copy of the petition and writ. Several garnishees were summoned and answered denying indebtedness, and a judgment in favor of the defendant against James S. Bryant rendered in the Platte Circuit Court had been attached, and the sheriff who sold lands under this judgment was garnished.

It also appears from the record that the defendant appeared in the cause and had the case put at the foot of the docket.

When the case was thus standing before the court an entry was made dismissing the cause for want of jurisdiction and rendering final judgment against the plaintiff for costs.

The plaintiff moved the court to set aside the dismissal and judgment and to reinstate the case, and the court overruled this motion and the plaintiff duly excepted and has brought the case here by appeal.

The assumption that the court had no jurisdiction over the defendant, as the record stands before us, is without founda[57]*57tion. Iiis appearance to have the case put at the foot of the docket gave the court such jurisdiction as to render a personal judgment against him. Besides, the service of the writ and petition in Kansas was equivalent to an order of publication.» His property was also attached, that is, garnishees had been summoned and a judgment in his favor attached, and the proceedings against the garnishees were still pending and undetermined.

Whether they owned anything, or not, or whether the judgment that had been attached was his property, or had been transferred to an innocent purchaser, were matters still to be tried. There was sufficient jurisdiction over the defendant to hold him till a final trial of the matters in litigation could be had.

In my opinion the court erred in dismissing the case, and for this reason the judgment will be reversed and the cause remanded.

The other Judges concur.

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Bluebook (online)

52 Mo. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orear-v-clough-mo-1873.

Opinion

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