Englehart-Davidson Mercantile Co. v. Burrell Sisters

66 Mo. App. 117 | Mo. Ct. App. | 1896

Gill, J.

In May, 1891, the defendants, Burrell Sisters, came from Blockton, Iowa, to Maysville, Missouri, and there engaged in the millinery business. In April, 1895, the plaintiff, a corporation doing business at St. Joseph, Missouri, brought this action to recover the price of some goods sold to Burrell Sisters, and in aid thereof, sued out an attachment and levied on the defendant’s stock of millinery at Maysville. In due season a plea in abatement was filed; there was a trial of the issues, and from a judgment sustaining the attachment, defendants have appealed.

The attachment affidavit on which the cause was tried, set up seven different grounds, including fraudulent contraction of the debt, fraudulent concealment and disposition of the property, etc., as well as the charges that defendants were nonresidents and were about to remove out of the state, with the intent to change their domicile. However, at the 'close of the testimony, the court eliminated from the issues the charges of fraud, concealment, etc., because of the want of evidence to support them, and submitted alone the two charges of nonresidence, and that defendants were about to remove out of the state, with the intent to change their domicile.

I. It is first objected that there was no evidence to warrant the court in submitting the case to the .jury; in other words, that the court should have sustained defendant’s demurrer to the evidence. After a careful reading of the entire testimony, we find this point not well taken. There was, to say the least, some substantial evidence tending to prove that at the time the attachment was sued out the defendants were seeking to dispose of all the property they had in this state, for the avowed purpose of returning to their mother’s home in Iowa. There was, then, evidence tending to prove that defendants were about to move out of the state, with the intent to change their domicile. We do not think, however, there was any evidence to prove the allegation that, at that time, the defendants were nonresidents of the state of Missouri. It is too plain for controversy that in May, 1894, the defendants- left their mother’s home in Iowa and went to Maysville, Missouri, with the view of establishing there a residence — a permanent domicile. They did not go there for a mere temporary purpose. However, since there was evidence tending to prove that defendants were about to change this domicile and return to Iowa, and there to renew or reestablish a residence, it was proper to overrule a demurrer to the.evidence.

II. Notwithstanding the absence of any substantial evidence to prove that defendants were, at the institution of the attachment suit, nonresidents of the state, the defendants are not in a situation to complain that such issue was submitted to the jury. If this was error, it was one committed at defendants’ request. For, at the instance of said defendants, the court gave instructions numbered 1 and -2, which told the jury that there was “no evidence in this case that at the time of the suing out of the writ of attachment in this case, to wit, April 18, 1895, the defendants were about to remove their property and effects out of this state, with the intent to hinder, defraud, and delay their creditors, or that the defendants had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors, or that the defendants had fraudulently concealed, removed, and disposed of their property and effects so as to hinder and delay their creditors, or that the defendants were about to fraudulently convey and assign their property and effects so as to hinder and delay their creditors, or that the defendants were about fraudulently to conceal, remove, and dispose of their property and effects so as to hinder and delay their creditors.” And “ that the only issues to be passed on by the jury are, the charge made in the affidavit as to defendants being nonresidents of this state at the time the writ herein was sued outy and as to the charge as to being about to remove from-this state at said time with intent to change their domicile.”

Following this were instructions defining residence or domicile, and declaring what plaintiff was obliged to show in order to prove nonresidence and removal of domicile. If defendants’ counsel meant to rely on the fact that there was no evidence to prove their nonresidence, they should have included this in the instruction where the other five grounds were excluded, or requested the court to so declare in another instruction. But instead of this, the jury was, at their instance, advised that the matter of nonresidence was in issue and for their determination.

III. We can see no just reason to complain of the court’s instructions. They fairly presented the two issues; as to the defendants’ nonresidence and whether or not they were about to move from the state. Nothing prejudicial to defendants could have resulted from giving plaintiff’s first instruction — which, in effect, told the jury that plaintiff was entitled to their verdict, if it had established any one of the grounds on which the attachment, was based — since, under defendants’ first and second instructions the jury were advised that there was no evidence tending to prove any of the seven grounds set out in the affidavit, save and except the two relating to the nonresidence of the defendants, and that they were about to remove from the state, and that these were the sole and only matters the jury had to decide.

We may also remark that the court properly instructed the jury as to the matter of residence, within the meaning of the attachment law. “Residence” and “domicile,” in the statute concerning attachment, mean practically the same. We have no need to invoke any statutory law of construction. This has been for many years the settled meaning of the word “residence” as used in the attachment law. Chariton County v. Moberly, 59 Mo. 238; Greene v. Beckwith, 38 Mo. 384.

The plaintiff’s fifth instruction, relating to the weight the jury should give the testimony of the defendants, was an unnecessary and perhaps improper comment on the evidence; but it was clearly harmless, as we think. Reading all the instructions together, as one charge from the court, they seem to us to have fairly and impartially declared the law applicable to the case.

IY. The objection urged against the validity of the attachment affidavit is answered by the decision of the supreme court in Avery v. Good, 114 Mo. 290. It was claimed there, as here, that the affidavit was void because the venue thereof was not stated. In that case, the only matter fixing the venue came from the impression of the notary’s seal: “W. A. Peebles, Notary Public, Indiana.” It was there said: “Here the notarial seal discloses the fact that the oath was administered by a notary public in the state of Indiana; and though no county is stated, still the presumption is that the affidavit was signed and the oath administered within his local jurisdiction; for it is not to be presumed that he violated his official duties. This objection would not be well taken on a motion to quash the attachment suit, and for much stronger reasons it is not well taken in a collateral proceeding like this.” The only difference between the two cases — the one just cited and that at bar — is, that here the notary’s seal has, in addition to the name of the officer, the words: “Notary Public, Buchanan County, Missouri.” We will presume, then, that the notary administered the oath to the affiant within his jurisdiction, to wit: Buchanan county, state of Missouri. This is the sole purpose of stating the venue — that is, to show on the face of the affidavit, that it was made within the jurisdiction of the officer who administered the oath.

Y. In the motion for a new trial, for the first time, the defendants made some technical objections to the sufficiency of the attachment bond. Such objections came too late. There was a bond filed at the institution of the suit, and it was duly approved by the clerk. If, then, the bond was for any reason insufficient, it was defendant’s privilege to call the court’s attention thereto and by motion require plaintiff to furnish and file another; which, if the plaintiff failed to do, the action would have been dismissed. Sections 529, 530, Revised Statutes, 1889. Failing at the proper time, to ask a better and sufficient bond, defendant can not now complain after the cause has gone to judgment. Henderson v. Drace, 30 Mo. 358.

YI. We are not authorized to consider the complaint to the effect that the court wrongfully restrained defendant’s counsel from discussing certain matters in the argument. These matters only appear on the face of affidavits by counsel, filed in support of the motion for new trial; there is nothing in relation thereto contained in the bill of exceptions. State v. Smith, 114 Mo. 406.

We discover no substantial error in the record and the judgment will be affirmed.

All concur.