268 Mo. 279 | Mo. | 1916
— This is a suit under section 2535, Revised Statutes 1909, to adjudge and quiet title to lot two of the northwest quarter and the north half of lot two of the southwest quarter of section 31, township 35 north, of range 5 west, in Dent County. The Dent Circuit Court rendered judgment for defendant, and this appeal followed. B. P. Vickery is the agreed common source of title. Appellant claims through mesne conveyances from B. P. Vickery, having obtained a deed in September, 1909. Respondent claims title under deed from Stephens and. Horsman, whose title depended upon the validity of a sale under judgment- in a suit by attachment they began against B. P. Vickery November 5, 1908. The ground of attachment was Vickery’s non-residence. No attachment bond was given. Service was had by publication. On April 21, 1909, Vickery, appearing solely to question the jurisdiction, filed a motion in the cause. On April 22,1909, alias summons was served in Dent County on Vickery, who was temporarily there. The cause was continued and was heard at the nest term of court. On November 29, 1909, Vickery filed a general denial by way of answer, no ruling having
Appellant’s sole contention is that the filing of Vickery’s answer in the attachment suit on November 29, 1909, ipso facto, instantly dissolved the attachment and, as instantly, freed the attached land from the lien, and that his title under his deed of September 8, 1909, is, consequently, one in fee simple, unaffected by the sale in the attachment proceedings. This contention is grounded upon the proviso in section 2298, Revised Statutes 1909. That section authorizes attachments without bond against non-residents but provides that “when any writ of ’ attachment has issued against a non-resident and the plaintiff has given no bond, the attachment shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case.”
It is obvious the plea to the jurisdiction did not affect the attachment, since the statute makes an “answer to the merits of the case” a condition precedent to whatever relief the proviso affords one within its scope. Did the filing of the, answer automatically dissolve the attachment?
These authorities warrant the conclusion.that the language of the proviso is not susceptible of the meaning now attributed to it by appellant. We hold that if in an attachment proceeding defendant desires the benefit of the proviso of section 2298, Revised Statutes 1909, it is incumbent upon him to move therefor. One effect of the dissolution of an attach
The judgment is affirmed.