Steamboat Archer v. Wm. & Emanuel Goldstein

Supreme Court of Missouri

Steamboat Archer v. Wm. & Emanuel Goldstein

13 Mo. 24

DecidedJanuary 15, 1850

StatusPublished

This text of 13 Mo. 24 (Steamboat Archer v. Wm. & Emanuel Goldstein) 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

Steamboat Archer v. Wm. & Emanuel Goldstein, 13 Mo. 24 (Mo. 1850).

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Opinion

RYLAND, J.

The statement of facts presents to this court two points for our adjudication : First. The sufficiency of the plaintiff’s complaint filed in the court below against the boat: Second. The act of the court below in permitting the plaintiffs to file their bond to prosecute the suit, after the boat had been seized, nunc pro tunc.

The plaintiff in error abandons the first ground, and we shall, therefore, say nothing on that.

The second point is one of more importance. By the act supplementary to “ An act concerning Boats and Vessels,” passed at the session of the General Assembly of 1846-7, it is declared, section 1 : “In all cases of attachment against a boat or vessel, under an act concerning Boats and Vessels, approved March the twenty-sixth, eighteen hundred and forty-five, the plaintiff, or some person for him, shall first execute a bond in conformity to an act to provide for the recovery of debts by attachment, approved March the fourteenth, eighteen hundred and forty-five, the condition of which shall be, that he will prosecute his suit with effect, or pay all damages that may accrue to the boat or vessel, or the owners and officers thereof, by reason of said attachment, or any process or proceeding in said suit.” By this statute it will be seen that the bond of the “ plaintiff, or some person for him,” shall be first executed in conformity to the statute, providing for the recovery of debts by attachment.

This court in the ease of Stephenson v. Robbins, 5 Mo. R. 18, decided that under our Attachment law, the bond was required to be filed before the writ could issue, could not be filed at the return term of the writ nunc pro tuna. In attachment cases, the filing of the bond by the plaintiff is a necessary and indispensable prerequisite. The statute respecting Attachments has always been considered one oí stricti juris. The statute respecting proceedings against Boats and Vessels, is of the same nature. We are led to the conclusion, that as the decisions of this court concerning Attachments, were known to the Legislature (the case of Stephenson v. Robbins, having been made some ten years prior to the passage of the above supplementary act, concerning Boats and Vessels), that they intended that the construction of the attachment law [22]*22in regard to the first filing of bond, should be the rule to be applied to this statute concerning Boats and Vessels, and that the filing of the bond in this case, by the plaintiffs or some person for them, was an indispensable act to be first done before.the writ could issue against the boat.(

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RYLAND, J.

The statement of facts presents to this court two points for our adjudication : First. The sufficiency of the plaintiff’s complaint filed in the court below against the boat: Second. The act of the court below in permitting the plaintiffs to file their bond to prosecute the suit, after the boat had been seized, nunc pro tunc.

The plaintiff in error abandons the first ground, and we shall, therefore, say nothing on that.

The second point is one of more importance. By the act supplementary to “ An act concerning Boats and Vessels,” passed at the session of the General Assembly of 1846-7, it is declared, section 1 : “In all cases of attachment against a boat or vessel, under an act concerning Boats and Vessels, approved March the twenty-sixth, eighteen hundred and forty-five, the plaintiff, or some person for him, shall first execute a bond in conformity to an act to provide for the recovery of debts by attachment, approved March the fourteenth, eighteen hundred and forty-five, the condition of which shall be, that he will prosecute his suit with effect, or pay all damages that may accrue to the boat or vessel, or the owners and officers thereof, by reason of said attachment, or any process or proceeding in said suit.” By this statute it will be seen that the bond of the “ plaintiff, or some person for him,” shall be first executed in conformity to the statute, providing for the recovery of debts by attachment.

This court in the ease of Stephenson v. Robbins, 5 Mo. R. 18, decided that under our Attachment law, the bond was required to be filed before the writ could issue, could not be filed at the return term of the writ nunc pro tuna. In attachment cases, the filing of the bond by the plaintiff is a necessary and indispensable prerequisite. The statute respecting Attachments has always been considered one oí stricti juris. The statute respecting proceedings against Boats and Vessels, is of the same nature. We are led to the conclusion, that as the decisions of this court concerning Attachments, were known to the Legislature (the case of Stephenson v. Robbins, having been made some ten years prior to the passage of the above supplementary act, concerning Boats and Vessels), that they intended that the construction of the attachment law [22]*22in regard to the first filing of bond, should be the rule to be applied to this statute concerning Boats and Vessels, and that the filing of the bond in this case, by the plaintiffs or some person for them, was an indispensable act to be first done before.the writ could issue against the boat.(

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Bluebook (online)

13 Mo. 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steamboat-archer-v-wm-emanuel-goldstein-mo-1850.