Hoshaw v. Gullett

| Mo. | Jul 15, 1873

Wagner, Judge,

delivered the opinion of the court.

Plaintiff brought his suit by attachment, and the sheriff attached certain personal property belonging to one of the defendants in the suit. The appellant in this case with others gave a bond for the forthcoming and delivery of the property and obtained possession of the same. The attachment suit was duly prosecuted to judgment, and an execution was issued and returned, “no property found.” The sheriff assigned the bond to the plaintiff by order of court; and notice was served on the appellant stating that a motion would be filed in court to have judgment entered on the bond. Upon hearing the motion, the court ordered the appellant to deliver the property to the sheriff within a prescribed time, and he failing to do so, judgment was rendered against him on the bond.

He afterwards moved to set aside the judgment, the court overruled the motion and he appealed.

The main reason assigned for reversal is, that the bond was not a statutory bond so as to authorize this summary proceeding. The bond states that the obligors are held and bound unto the sheriff and his successors and assigns, conditioned that they shall deliver to the said- sheriff, his successors or assigns, the personal property attached at such time and place as the court shall direct.

The statute provides, that “when property of the defendant found in his possession or in the hands of any other person, shall be attached, the defendant or such other person.may retain the possession thereof, by giving bond and security to the sheriff, his successor or their assigns, in double the value of the property attached, conditioned that the same shall be forthcoming when and where the court shall direct, and shall abide the judgment of the court.” (1"W". S., 186, § 24.) A subsequent provision, (§ 54,) declares that where none, or only part of the property has been found, the court shall direct the officer to assign the bond to the plaintiff, and the court may on motion render judgment, in favor of the plaintiff and against the obligors in the bond.

It is now insisted that as the record does not show that the attached property was found in the possession of the defendant, or in the hands of any other person, there is not such a compliance with the statute as would warrant a judgment by summary proceedings.

It is true, it is not directly stated, that the property was . found in the hands of' the obligor, the appellant here. But I think that fact is acknowledged, and sufficiently apparent, by his voluntarily entering into the obligation, and undertaking that the property shall be brought forth and delivered up in accordance with the direction of the court. The bond observes all the essential requirements of the statute, and is substantially good. To hold otherwise, would we think, be sacrificing undoubted justice to a mere technicality.

It is not pretended that the appellant had any meritorious defense. He was in court but offered no testimony, and assigned no reason why he was not liable. We have not been able to find any other question in the ease demanding any consideration.

With the concurrence of the other Judges, the judgment will be affirmed. Judge Sherwood did not sit.