Wirt v. Dinan

41 Mo. App. 236, 1890 Mo. App. LEXIS 275

Opinion

Gill, J.

Plaintiff’s counsel states this case as follows:

Plaintiff brought suit in the circuit court of Bates county, Missouri, by attachment,- and levied upon the goods and lands of defendants found in said county. The ground of attachment alleged by the plaintiff is found in the twelfth subdivision of section 398 of the Revised Statutes of Missouri, 1879. The facts constituting the cause of action were fully set out in the petition and affidavit of the plaintiff. It was therein alleged, in substance, that defendant Anna Dinan, for the purpose of cheating and defrauding plaintiff, and obtaining money from him, did, about the thirty-first day of August, 1889, in the absence of her husband, and without his consent or knowledge, steal twenty-eight head of cattle in Bates county, Missouri, from August Schuman, of the value of five hundred and fifty dollars ; that she drove twenty-six head of said' cattle to the farm of plaintiff in Cass county, Missouri, still in the absence of, and without the consent of, her husband, and falsely and fraudulently, and for the felonious purpose of obtaining money from plaintiff, represented to him that she was a poor unmarried' woman of the name of Maggie O ’ Grady, and a widow ; that she was traveling to the northern part of the state of Missouri to see her relations; that the twenty-six head of cattle were her own property, and all the' property she had, and that she was greatly in need of money to continue her journey, and asked and solicited plaintiff to purchase them from her. It is further stated in the affidavit that plaintiff relied upon said statements and representations, and believed them to be true, although they were, in fact, all false, and well known by her to be false, and was thereby induced to, and did, purchase the cattle from her and pay her, in cash, $498.90; that, afterwards, the owner of the cattle, August Schuman, reclaimed tñem and took them out of the hands of plaintiff; that, by reason of the false and fraudulent conduct and representations of defendant Anna Dinan, plaintiff has lost and is damaged in the sum of $498.90. A writ of attachment was issued pursuant to the affidavit, and the sheriff levied upon a large amount of defendant’s property.

Defendants then moved to quash the writ and the return thereof on the ground that the defendant Anna Dinan was a married woman, and, this being an action at law, it cannot be maintained against her. And, also, that the defendant Anna Dinan, being under coverture, her contract for the sale of the cattle to plaintiff was void, and the damages connected therewith could not be recovered, either against her or her husband. The court sustained the motion to quash, and rendered a judgment thereon against plaintiff, ordering and adjudging that said motions “be, and they are hereby, sustained, and that the writ of attachment issued herein, together with the levy and return thereof by the sheriff of Bates .county, be quashed and for naught held, and as to the same the defendants go hence without day, and have and recover of plaintiff their costs in this behalf expended, growing out of the issuing, levy and return of said writ of attachment herein, and thereof have execution. To which judgment and decisión of the court in sustaining said motions, dissolving said attachments, quashing the writ, levy and return thereon, said plaintiff, by his attorney, at the time, duly excepted.” Subsequently, plaintiff filed a motion for a rehearing. The same was on February, 1889, by the court overruled, and, thereafter, in December, 1889, plaintiff brought the case here by writ of error.

I. It is clear that this writ of error must be dismissed, as there is no authority, under the law, for a writ of error in a controversy of this character. This is an effort to have this court review, on a writ of error, the order and judgment of the circuit court sustaining a motion to quash an attachment, said motion filed as provided by section 445, Revised Statutes, 1879. Under that statute an attachment writ may be quashed, and the same dissolved, for three reasons therein mentioned, first of which is where the affidavit shall be adjudged insufficient in law to warrant the attachment. It was for this reason the court below dissolved the attachment and quashed the writ herein. And it was, too, from this judgment or order, and this alone, that plaintiff has sued out the writ of error. The judgment on the motion to quash was not the final disposition of the entire case in the court below; was not a final judgment of the cause, but simply a judgment on the motion to quash the attachment leaving the main case standing as before, a suit for damages without the auxiliary attachment. It has been long and well understood in this state that there can be but one final judgment in a cause, and that such final judgment cannot be composed of fragments. As to the defendant the judgment must relieve him from further appearance as to the entire cause. He must be permitted to go “ without day,” etc. Such is not the case here. The defendants (as appears from this record) are still held in the court below to answer the merits of the action or petition, while this attachment — this adjunct to the main case — is brought here for review. The judgment below did not discharge defendants from the entire cause but only quashed “and for naught held” the writ'and levy of attachment, and “ as to the same ” (to-wit, the writ of attachment only and nothing more) the defendant s were permitted to go without day. Said judgment did not even award defendants their costs expended in the whole case, but simply adjudged costs only “growing out of the issuing, levy and return of said writ of attachment.” Obviously then the judgment complained of has only to do with a fragmentary portion of the case, and an ap peal or writ of error therefrom is not allowed unless the statute takes this case from the general rule. Evans v. Russell, 61 Mo. 37; K. C. Cable Co. v. Kansas City, 29 Mo. App. 95; Richards v. Johnson, .34 Mo. App. 33; Witthaus v. Bank, 18 Mo. App. 183, and cases cited. “Every person aggrieved by any final judgment or decision of any circuit court,” * * * may make his appeal, or sue out his writ of error, etc. R. S. 1879, sec. 3710. Prior to 1879, an appeal did not lie from a judgment on a plea in abatement to an attachment, and for the reason that the same was regarded as a mere interlocutory order and was not the final judgment prescribed by the statute. Anderson v. Moberly, 46 Mo. 191; Davis v. Berry, 46 Mo. 449; Metzenberger v. Keil, 31 Mo. App. 130; Walser v. Haley, 61 Mo. 445. But in the revision of 1879, the law was amended so as to permit appeals from such orders and judgments on the plea in abatement (section 439, Revised Statutes, 1879). But this amendment to the old law applies, in terms, only to judgments on pleas in abatement, and makes no reference whatever to judgments or orders dissolving or quashing attachments on motion, such as we have here. The plea in abatement, provided by section 438 and mentioned in section 439 (Revised Statutes, 1879), is quite a different matter from the motion to quash mentioned in section 445. The first, by means of the affidavit of the defendant, puts in issue the facts which furnish the grounds for the attachment, while the latter ( or motion to quash) simply calls for the judgment of the court as to the legal sufficiency of the affidavit on its face. We have in the case at bar a writ of error sued out on a judgment entered upon a motion to quash provided for in section 445. It is in no sense a plea in abatement, and, therefore, clearly not within the provisions of section 439.

But even did such motion to quash come within the spirit and intent of section 439, and a right for an appeal thereby provided, yet plaintiff is not justified in bringing the case here by writ of error. That statute authorizes only an appeal, which under the law must be made at “the term at which the judgment or decision appealed from was rendered.” R. S. 1879, sec. 3712. It was not intended by said section 439 to permit a writ of error which may be sued out at any time within three years after such judgment or decision appealed from. R. S. 1879, sec. 3745. This point has been expressly so decided in this state. Duncan v. Forgey, 25 Mo. App. 310; Young v. Hudson, Mo. Sup. Ct. (not yet reported).

II. Counsel for plaintiff request that, notwithstanding this writ of error be dismissed, we examine into the issues of the main case, as they may be hereafter presented, and give our opinion thereon and thereby facilitate the trial of the cause on its merits. We feel scarcely justified in so doing. We have in the record now before us nothing to advise us of just what the issues are in the main case. We discover a petition; but as to whether or not the case shall be tried thereon, whether or not the same may be amended, or whether a demurrer is or may be interposed, or an answer filed, , and the nature thereof, or whether in fact there shall be any defense at all, we have no knowledge or means of knowing. Hence we should, in following the course suggested by the learned counsel, be justly charged with declaring the law on a mere moot case — trying nothing but mere supposable legal issues, which we conceive improper

The writ of error herein is dismissed.

All concur.