Harris v. Meredith

106 Mo. App. 586 | Mo. Ct. App. | 1904

ELLISON, J.

This action was instituted before a justice of the peace in Pettis county and an attachment sued out in aid thereof. The trial court found for defftn.da.nfi'on the plea in abatement, and then taking np the case on its merits, the court dismissed it.

It appears that plaintiff is a resident of the city of St. Louis and defendant a resident of Cooper county. The suit was brought before a justice of'the peace of Sedalia township, in Pettis county. Defendant was not found in Pettis county but the Bank of Smithton in Smithton township in that county, which adjoins Sedalia township, was garnished by the constable under the writ of attachment. The garnishment was had by summoning the cashier of said bank, who was found in Sedalia township. The defendant, though not summoned, appeared before the justice and obtained a change of venue to another justice. Defendant appeared before the latter justice and contested the case and on being defeated he appealed to the circuit court of Pettis county, as already stated, where he was successful on trial of the plea in abatement and the case itself was dismissed.

The cause alleged for the attachment was that defendant had fraudulently conveyed his property and effects with intent to hinder and delay his creditors: The facts were, as shown by agreement of parties, that defendant owned a homestead which was mortgaged and that'he sold his equity of redemption therein for $900 which he gave to his wife and the money was deposited in the Smithton bank in her name. That he owed her $500, leaving $400 which he gave her voluntarily without a consideration. In other words, the transaction as to the $400 would, ordinarily, have sustained the attachment. But in this case, the money was the proceeds of a sale of the homestead, and though one should make a voluntary conveyance of property which is exempt from execution for his debts, it can not be said to be in fraud of creditors, since they have no right or interest in it and it can not harm them. Rose v. Smith, 167 Mo. 81; Hart v. Leete, 104 Mo. 315.

But plaintiff says that when the sale of the homestead occurred and it was transformed into money, no further homestead could be claimed. The difficulty with plaintiff’s contention is that by the agreed statement of facts it appears that defendant’s “intentions were and aré to reinvest said money in another homestead.” In this State a homesteader may sell the homestead, and if he intends to reinvest the proceeds in another home he may hold such proceeds exempt as was the homestead itself. State ex rel. v. Hull, 99 Mo. App. 703 and cases cited. It makes no difference whether the sale was voluntary or involuntary. So therefore we find no error in the disposition of the plea in abatement as made by the trial court.

The trial on the merits then came on. The law concerning the place for bringing suits before justices of the peace is found in the two following sections of the statute of 1899:

Section 3839. 11 Every action recognizable before a justice of the peace shall be brought before some justice of the township, either: First, wherein the defendants, or one of them, resides, or in any adjoining township; or, second, wherein the plaintiff resides, and the defendants, or one of them, may be found; third, if the defendant is a non-resident of the county in which the plaintiff resides, the action may be brought before some justice of any township in such county where the defendant may be found; . .

Section 3840. ‘ ‘Every action by attachment shall be brought before a justice of the township wherein the property, credits or effects of the defendants, or either of them, may be found, or in any adjoining township thereto, or in the township wherein the defendant resides, or in any adjoining township.”

This action being by attachment is governed by the latter section. The record of the case before the justice of the peace shows that the garnishment was secured and served on the cashier in Sedalia township, the township of the justice. This was a finding of-the property, in the sense of the statute, in Sedalia township, although the money garnished was in a hank located in another township. Considered as an' attachment suit, it was properly brought in Pettis county and the justice of Sedalia township had jurisdiction.

But except as resting upon the foundation of a suit “by attachment,’’ there was no jurisdiction. For, the suit being brought in a county where neither the plaintiff nor defendant resides, the justice had no jurisdiction, even though the parties appeared. Peery v. Harper, 42 Mo. 131; Smith v. Simpson, 80 Mo. 634. We draw this conclusion from the utterance of the Supreme Court in those cases. Therefore, when the attachment failed, jurisdiction of the case went with it, since the attachment was all that sustained the jurisdiction.

The result is that the judgment must be affirmed.

All concur.