87 Mo. 183 | Mo. | 1885
This suit was commenced by attachment issued against both defendants. An amended petition was filed, and defendants filed plea in abatement to the affidavit for attachment. These Issues were subsequently tried and found for plaintiff, and a judgment sustaining the attachment followed. Thereupon defendants filed a motion to dissolve the attachment, which was sustained. This action of the court appears to have been treated as a judgment against the plaintiff on the plea in abatement, from which the plaintiff appealed. The motion was sustained on the ground that the suit was one in equity to charge the separate estate of a married woman, and that no attachment could issue in such cases. The first count of the petition states that David Bedell had for a long time carried on a retail grocery business; that the business was carried on by him under the firm name of M. J. Bedell, but it is not stated that he was in partnership with .any one; that M. J. Bedell is the name of Mary J. Bedell, wife of David; that David Bedell made the note which is described,
It will be seen the burden of the petition is that-the ■ debts were the debts of Dai id Bedell, contracted by him under the name of M. J. Bedell; that the business was really his, and that the attached property was his property, though-fraudulently thus kept in the name of M. J. Bedell. The petition is not in the nature of a proceeding to charge the separate property of a married woman with a debt contracted by her. It is rather a proceeding to charge the property of David Bedell with his own debt. It is not seen what good purpose the ■equitable matter set up will subserve, as these questions can all be tried should the rights of property be disputed by M. J. Bedell. She made no motion to quash the writ of attachment as to her, nor has she as- yet pleaded to the petition. If she was improperly joined, it does not follow that the attachment should be dismissed as to David Bedell.
The judgment is reversed and cause remanded.