139 Mo. 142 | Mo. | 1897
The record in this case shows that this was an action in which a writ of summons was issued to the defendants, Frank Barnard, J. B. Wood, Frank Wood and M. Fairchilds Doud, all of whom were served with a summons, except defendant Frank
After that judgment was affirmed in the Supreme Court, and the cause of action on the interplea entirely disposed of, Colbern, the interpleader, appeared before the circuit court and filed a motion to compel plaintiff to give a new attachment bond. The attachment practically was disposed of when this motion was made, but the plaintiff offered to • and did dismiss its attachment writ, and demanded a trial upon the merits of the cause. This was denied .plaintiff, .and the court thereafter sustained a motion of the interpleader to dismiss the suit upon its merits, because plaintiff failed to give a new attachment bond. The only question therefore for decision is, did the circuit court err in dismissing the case on the motion of the interpleader?
Section 556, Revised Statutes 1889, provides that, “When the defendant has been served with the writ, or appears to the action, the proceedings in the cause shall be the same as in actions instituted by summons only, and the judgment and execution shall hold, not only the property attached, but the other property of defendant.” By section 572, Revised Statutes 1889, a statutory replevin is engrafted on the attachment act. It provides that “any person claiming property, money, effects or credits attached, may interplead, in the cause, verifying the same by affidavit, and issues may be made upon such interplea, and shall be tried
This proceeding by interplea is a separate proceeding from the attachment. In it the interpleader must recover upon the strength of his own title to the attached property. The right to the property is the point at issue, and the interplea obviously should be heard and determined before the attachment. The determination of that issue in favor of the interpleader can not, in reason or law, affect the plaintiff’s right in the principal action to a judgment on the merits against the defendants. Whether plaintiff maintains his attachment or whether it is quashed, or the interplea is sustained, his right to continue his action against the defendant can not, under the statute or the analogies of the law and common sense, be doubted.
There can be no reason why it should. The attachment is merely a proceeding in aid of the action commenced concurrently with or after the suit is commenced.
We presume that the circuit court based its judgment upon sections 529 and 530, Revised Statutes 1889. By these sections it is provided that if the court at any time pending a suit by attachment deems the bond insufficient it may require plaintiff to give a new bond. Section 530 is in these words: “If the plaintiff shall fail to comply with such order within ten days after the same shall be made, the suit shall be dismissed at his costs.”
The right of plaintiff to proceed in its action against the defendants on its cause of action against them after personal service and appearance, without the interference of the interpleader is too plain for discussion. The interpleader having obtained a final judgment for all the attached property, the cause stood
The action is in all respects one in personam. While the languagé of. the statute (sec. 530) authorizes the court to dismiss the suit, it evidently refers to those suits in which the court has jurisdiction only by virtue of the levy of the attachment, or to the dismissal of the attachment proceeding in those cases where personal service is had. The spirit and purpose of the statute is so clear that it is not susceptible of any other fair construction.
The court erred in refusing to permit plaintiff to proceed oh its cause of action against the defendants and for this error the judgment is reversed and cause remanded.
