Scully v. Cox

75 Mo. App. 563, 1898 Mo. App. LEXIS 472

• Court: Missouri Court of Appeals
• Decided: May 16, 1898
• Status: Published

Opinion

Gill, J. —

STATFM RNT Plaintiff sued the defendant in the circuit court for rent; and in aid thereof filed an affidavit for attachment, under the landlord and * tenant statute, setting out, as the sole ground for attachment, that the amount of the rent (on certain land, describing it) was due. This affidavit was clearly defective in that it failed to charge that the rent had been demanded, as required by section 6384 of the Revised Statutes. The clerk, however, issued an'attachment writ commanding the sheriff to levy on any property of the defendant including his lands, tenements, etc.; and the sheriff did levy on certain lands of the defendant and on nothing else.

Thereupon defendant appeared in court and filed his motion to quash the writ because issued without authority of law. Before this motion was disposed of plaintiff amended her affidavit by adding thereto that the rent had been demanded. Defendant’s motion to quash the writ was then overruled; but he at once filed another motion to quash the levy of the writ 'of attachment, alleging as ground therefor, that there was “no authority of law for attaching real estate in an action of this kind.” Pending this last motion plaintiff asked leave to file another and second amended affidavit for attachment, which included not only the ground of rent due and payment thereof demanded, as in the first amended affidavit, but also other grounds, such as fraudulent conveyance of property, etc., found in the general attachment law. On defendant’s objection the court excluded this last affidavit. The court then sustained defendant’s motion to quash the levy of the original writ; and at once ordered the issue of another attachment writ, limiting the seizure thereunder to the defendant’s personal property and crops grown on the rented premises, as provided in the landlord and tenants statute. Sec. 6384.

The record shows that notwithstanding the court’s action in excluding said second, amended affidavit the plaintiff proceeded to trial on the plea in abatement to her first amended affidavit and moreover was successful, the attachment was sustained, and after final judgment on the merits (likewise in her favor) said plaintiff has appealed.

.Attachment * landlord and tenant: amended f®ed-waiVeiac' To reverse the judgment and remand the cause for new trial, plaintiff relies on the alleged error of the trial court in refusing to allowi her to file her second amended affidavit for attach-men'fc. We find it unnecessary to pass on this assignment of error, since the plaintiff has, by going to trial on her first amended affidavit, waived her objection to the court’s ruling as to the last. The plaintiff, by offering to file her last affidavit, in effect abandoned the former, or first amended affidavit; but when the court excluded her second amended affidavit the plaintiff again took up the former affidavit and the issues made by the plea in abatement, went to trial thereon and secured judgment in her favor. Under these circumstances plaintiff must be deemed as waiving all objections to the court’s ruling in excluding the last pleading. If plaintiff ■desired to contest her right to the last pleading she ■ought to have abandoned altogether the first amended affidavit and stood on the last. Plaintiff was entitled to one trial on one affidavit,' but not to two trials on two separate pleadings. She had an option, under the circumstances, of standing on her claim to the last pleading, or submitting to the court’s ruling and trying the attachment issue made on the former affidavit. She chose the latter and must now abide the result.

Judgment affirmed.

All concur.