Jump v. McClurg, 35 Mo. 193

Jump v. McClurg

35 Mo. 193 | Mo. | 1864

Dryden, Judge,

delivered the opinion of the court.

1. The writ of attachment in this case was irregular for want of the seal of the court, but was not for that cause a nullity as contended by the plaintiffs in error.

It has been held by this court (Davis v. Wood, 7 Mo. 165), that the provision of the State constitution requiring all writs and process to run in the name of “the State of Missouri,” is merely directory, and that an omission to comply with the requirement is only an irregularity; so in regard to sealing. The statute requires all writs and process to be under the seal of the court from which they issue, but it nowhere declares the absence of the seal shall render the process void. The only office of the seal is to authenticate or to prove the genuineness of the writ to which it is attached. It is held in Massachusetts that the want of the seal is merely formal, and affects the regularity of the process only. (Foot v. Knowles, 4 Met. 391; Brewer v. Libby, 13 id. 175.) And in New York it is settled, that a writ without the seal of the court is not void, and therefore amendable. (The People v. Dunning, 1 Wend. 17; Culver v. Brown, 4 Cow. 550.) The writ was amendable, and the court therefore committed no *197error in permitting the respondent to amend by affixing the seal pending the motion to quash, and in refusing to quash.

2. We find no fault with thé action of the court in refusing the plaintiffs in error permission to plead in abatement to the attachment. In the first place, the plaintiffs being strangers to the suit in which they proposed to plead, the privilege of appearing at all rested wholly in the discretion of the court. The law provides, (R. C. 1855, p. 256,) “ Sec. 59. In all suits by attachment wherein there is no personal service on the defendant, and the defendant shall not appear to the action, the court in which such suits are pending may, for the furtherance of justice, in its discretion permit any person or persons who are attaching creditors of the same defendant to appear in said suits on behalf of the defendant, and make all such defence as the defendant could have done.” There is nothing in the case to show that the court exercised its discretion unsoundly. Not only was the motion for leave to plead unaccompanied by any affidavit in support of the truth of the plea, but in looking into the record it is seen that the ground on which the plaintiffs in error sued out their attachment is identical with one of the grounds in the respondent’s affidavit. This was a fact the court could not help seeing; and until some explanation was given, supported by the oath of the party, although the affidavits in the two cases were made at different periods of time, the court might well refuse to allow the plaintiff to intervene.

Furthermore, the plea was out of time. A stranger coming in, in the place of the defendants, could have no higher right than the defendants themselves, supposing the term at which these proceedings transpired was the return term in the respondent’s case, the defendants to the suit were bound to appear at farthest on or before the sixth day of the term. (Hamilton v. McClelland, 83 Mo. 815.) The record shows the motion to quash was filed on the third day of the term *198and overruled on the fifth, and the offer to plead in abatement was on the eighth day of the term. Had the offer been made by the defendants themselves, it would have been too late.

There is no error in the record. Let the judgment be affirmed;

Judge Bates concurring; Judge Bay not sitting. ■