22 Mo. App. 443 | Mo. Ct. App. | 1886
Lead Opinion
Plaintiff filed with the justice of the peace a statement in replevin, but so defective, in omitting to state that the property had not been seized under any process, execution or attachment, against the property of plaintiff, that it gave the justice no jurisdiction and he should not have issued process thereon. Gist
“Bond — We undertake and are bound to the defendant, John W. Tiffin, in the sum of one hundred and seventy dollars for the prosecution of the action in the above entitled cause ; for the return to the defendant Tiffin •of the mare ordered to be delivered by the defendant to the plaintiff Frederick if return thereof be adjudged, and for the payment to him, the said defendant, of such sum as may, for any cause growing out of the order in the •cause be recovered against the plaintiff and for the payment of all costs of suit. George S. Frederick (L. S.), J. W. DeGeer (L. S.), John Renfrew (L. S.) ”
After trial before the justice, the cause was appealed to the circuit court, where defendant filed a motion to .dismiss the cause, for the reason that the statement was imperfect and gave the justice no jurisdiction, and that he should not have issued process thereof. The court sustained this motion, dismissed the cause and proceeded to render judgment summarily against the securities, DeGeer and Renfrew, under section 2903, Revised .Statutes.
The replevin bond is not in the form required by the ■statute, though we will not say it is so far deficient, in this respect, as not to be a good statutory bond, if it was founded upon the proper statutory proceeding authorizing it to be executed.
The original statement gave the justice no jurisdiction of the case, and for this reason the circuit' court dismissed it. The justice having no jurisdiction over the •subject matter, the process in the cause was void. The bond authorized by the statute, and on which summary judgment may be had against the sureties, is, of course, -a bond given in proceeding legally conducted under the
We see no reason why they should not be held liable, however, in a direct action on the bond for the purpose. We consider the cause of State v. Stark a (75 Mo. 666), a direct authority in support of such an action.
The judgment is reversed and'the cause is remanded. The other judges concur.
Rehearing
Ob Re-heabibg.
When this cause was considered by the court in the first instance, our attention was not called to the decision by the St. Louis court of appeals, in the case of The Singer Manufacturing Company v. Sennet at., the syllabus of which is given in the Seventh Missouri Appeal. We have been furnished with a copy of the opinion in that case, and find the point made in this case does not appear to have been raised or considered in that.
The summary judgment seems to have been treated as valid, all’round, and the cause went ofi, as best we can gather, on the question as to whether a motion to set aside an order of dismissal was filed in time, and that the objection that damages on the bond were not assessed by a jury, was not saved by a motion in arrest of a summary judgment against the sureties, or otherwise.
It does not appear that the question was considered by the court or counsel; we do not regard the opinion as a precedent, further than the point considered and decided. As to this case, we reiterate that, as a summary judgment against the sureties is authorized by the statute, on a statutory proceeding, if such proceeding is void, so that the justice of the peace nor the circuit court on appeal have no jurisdiction over the subject matter, there can be no summary judgment rendered under the
The motion is overruled.
