27 Mo. App. 81 | Mo. Ct. App. | 1887
This was an action to charge the separate estate of Sarah E. Lewis, a married'woman, with the payment of a debt contracted by her as a sole trader, doing business at Gallatin, Missouri, as a retail furniture dealer, with the knowledge, consent, and assistance of her husband.
For the purpose of charging her estate, plaintiffs instituted a suit in equity, on May 12, 1885, and in aid of, and in connection with, said proceeding, on September 1, 1885, sued out an attachment, and had same levied on the separate property of defendant, Sarah E. Lewis, consisting of her' stock of goods in Gallatin. As grounds for this attachment, plaintiffs alleged in their affidavit, “that the defendants have fraudulently conveyed and assigned their property and effects, so as to hinder and delay their creditors,” and, to support said allegation, introduced, on the trial, a chattel mortgage, executed by the defendant, Sarah E. Lewis, and her husband, to one H. C. Northup, on April 24, 1884, covering the property sought to be charged by plaintiffs’ action, and duly recorded on April 27, 1885.
Upon trial had of the issues made in said attachment proceedings, on plea in abatement, the circuit court found for the defendants, with a judgment in their favor for costs, and from the decision of the circuit court • so rendered, the plaintiffs have prosecuted this appeal. The only question to be determined in this court is, whether or not the circuit court erred in dissolving the attachment and entering judgment therein for the defendants, on the plea in abatement. In order .to clearly understand the result we arrive at in this case, I will refer to the status a married woman occupies in a court of law or equity. “ A married woman is wholly
If, therefore, an attachment is a proceeding at law, and in personam (as to residents), I can find no ground upon which to sustain this appeal. That it is a special remedy at law, belonging exclusively to the courts of law, and pursued in conformity with the terms of law, I think has been the understanding of the bar of the state. It is so stated by the text writers. Drake on Attachments, sect. 4a. It “is always personal in form.”
In Lackland v. Garesché (56 Mo. 267), it is said that, although our code of practice has abolished distinctions in the form of actions, the line of demarcation between legal and equitable cases is still preserved; that “the remedy by attachment for the collection of debts in this state is essentially legal, and not equitable, in its nature and procedure. It is founded alone upon statutory law.”
It is expressly decided in Gage et al. v. Gates (62 Mo. 412), that an attachment cannot be run against the property of a married woman. “It is obvious,” said Sherwood, J., “thatif the wife had a separate estate In the millinery establishment, that it was attachable neither for the debts of the husband, nor of the wife; and it is equally obvious that such separate estate could only be reached by appropriate procedure in equity for that purpose.”
I would have been content to have cited that case, without more, as decisive of this, were it not for the case of Frank v. Siegel (9 Mo. App. 467), where It is held that an action to charge the separate estate oí a married woman may, where the facts warrant such a proceeding, be commenced by attachment. The petition, in that case, was probably a bill in equity. The attachment, of course, was founded on an affidavit and bond. It is there held that an attachment writ is not a form of action; that it is not a suit, either at law or iu equity. However this may be, it is nevertheless certain that an attachment necessitates a trial at law, upon legal issues, regularly made by the plea in abatement, and that a judgment in personam must follow such trial, and from which judgment an appeal' will lie. There can be no doubt but such trial before a jury,
The judgment,
is affirmed.
