107 Mo. App. 321 | Mo. Ct. App. | 1904
In September, 1902, plaintiff sold and delivered a stock of groceries to defendant; as payment for these goods, defendant agreed to convey land in Christian county, Missouri, described in a deed in his possession, assuming to be executed by one Joseph Ward, with the place of the name of the grantee therein left blank, and to be filled up subsequently. The testimony tended to show that defendant stated to plaintiff, that the title to the land was good, and he exhibited tO' him an abstract of title in reply to inquiry therefor, purporting to show that the grantor, Ward, had a per-
Defendant in his plea in abatement, denied, specifically and generally, all the grounds of attachment set forth by plaintiff’s affidavit, and a trial by jury was had resulting in a verdict for plaintiff, sustaining the attachment upon the ground stated. Forthwith defendant filed an answer to the merits, denying the allegations of the petition and affirmatively charging that “in the fall of 1902, plaintiff had traded defendant a stock of damaged goods, worth not over one hundred dollars; for the title papers to a section of land in Christian
Defendant filed, thereupon, a single motion to set. aside the verdict and judgment on the plea in abatement and on the merits, manifestly designed to perform joint service for both trials and entitled as such motion for both, which was overruled, and defendant filed two disconnected bills of exceptions, one for each trial. Obviously appellant could not embody an exception to the overruling of his single motion for a new trial in both bills of exceptions; nor could he incorporate an exception to the overruling of his motion for a new trial on the plea in abatement in his bills of exceptions filed in the trial on the merits. The bill of exceptions filed on trial in abatement shows no ruling on motion for a' new trial on that plea, and consequently no exception saved to such ruling, yet clearly that was the appropriate and only place to save such exception.
Under the statutory prolusions, the plea in abatement put in issue merely the truth of the facts contained in the affidavit upon which the attachment was sued out (R. S. 1899, sec. 406); and upon trial had on this sole issue, after new trial had been denied, judgment should have been rendered against defendant sustaining the attachment; defendant then was entitled to file his bill of exceptions as upon any other matter in the proceedings, and answer to the merits, without waiving the exceptions saved to the trial upon the plea in abatement,
The language of the attachment statute is ample to entitle plaintiff to maintain an attachment on the ground that the debt sued for was fraudulently contracted; it accords a plaintiff the right to an attachment writ against the property of a defendant in any of the enumerated instances, embodying as the final ground the comprehensive cause of the debt sued for being fraudulently
Some exception is taken to the instructions, but they were in general warranted by the testimony and substantially correct declarations of the law.
The judgment was obviously for the right party and is affirmed.