Kingsland v. Worsham

15 Mo. 657 | Mo. | 1852

Gamble, J.,

.delivered the opinion of the court.

The act providing for the recovery of debts by attachment allows such writ to issue “where the debtor has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him.” The attachment, in the present case, was issued upon au affidavit alleging, in the words of the law, that the defendants had absented themselves from their usual place of abode, &o. The truth of the affidavit was denied by plea, and upon the trial of the issue, several instructions asked by the defendants were refused, and one was given by the court on its own motion. Our attention will be given to this last instruction, as the views entertained by the court, in relation to the clause of the act under which this attachment issued, can be fully expressed in considering the correctness of this instruction.

The instruction asserts, as a matter of law, that the attachment under this clause of the statute, may be rightfully sued out in any case in which a defendant has absented himself from his usual place of abode in the State, and was absent at the time of the issuing of the attachment, if he had no family residing here and left no white person of his family above the age of fifteen years at his usual place of abode, and no agent authorized to receive service of a summons.

This is stated to the jury as the law in a case in which the attachment was issued on the 23d day of July, and the property of the defendant seized upon that day, and the defendants personally summoned on the writ on the first day of August, to appear at the third Monday of September to answer the action. It is obvious, that if the meaning, of the statute is properly expressed in this instruction, then every man in this-State,, whose domestic servants are negroes and who goes with his family upon a visit for a few weeks or even days to his-friends in another State, or to another county in this State, is subject to have hi# property seized by any creditor upon an attachment, although it may be certain that he will return to his home in time to admit of the regular service oí a summons upon him, returnable to the next terra of the court in his county. Or, a person engaged in business, who rsa boarder at a Hotel, and is absent for a few days upon business or recreation, may, on his return, find all his effects in the hands of the Sheriff by a regular legal attachment. Such a construction of the statute is not to be admitted, unless there is something in its language that absolutely requires us to give it this meaning.

There are two general objects proposed in the act; the first is, to subject the property of non-resident debtors to the demands of our own citizens; the second, to enable a creditor to seize the property of a debtor who has acted or is about to act fraudulently. There are some cases specified in the act in which attachments may issue. The first is, “where the defendant is not a resident of nor residing within the State.” All others are designed to reach the property of resident debtors. The second, allows an attachment “where the debtor conceals himself so that the ordinary process of law cannot be served upon him.” This applies to the case of present misconduct of the debtor, by which the creditor is prevented from having his action against him in the ordinary mode. The third, allows an attachment “where the debtor has absconded or absented himself, from his-usual place of abode in this State, so that the ordinary process of law cannot be served upon him.” If this clause includes two cases in which an attachment may issue, one because the debtor has absconded, and the other because he has absented himself from his usual place of abode; the first places the right to the attachment upon the misconduct of the debtor, in “withdrawing or absenting himself privately,” which is the definition of absconding, and the second, upon his absenting himself (rom ids usual place of abode, so as to produce the hindrance to the creditor in bringing his action in the. ordinary mode. If the clause embraces two distinct grounds of attachment then the language must not be so construed as to máke one of them include the other. If the ease of the defendant’s absenting himself from'his usual place of abode is made to include all cases of such absence, then it is difficult to imagine a case in which the plaintiff would be required to swear that the debtor had absconded. The last Words .of the sentence, £cso that the ordinary process of law cannot be served upon him,” seem to be applicable to both cases, and upon the supposed instruction, any absence would be just as good a ground for attachment, as the secret withdrawing which constitutes the absconding mentioned in the statutes. Regarding the clause as containing two distinct grounds of attachment, the first, or absconding, must subject the debtor to the process because of the character of his act, in secretly withdrawing himself from his residence; and the second, or absenting himself, must have the same effect, because of its continuance. The facts of the case, cited from 1 Wendell 43, furnish an illustration of the interpretation here given to the act. There, the defendant, a resident of New York, went to Scotland in 1824, partly on business and partly ior pleasure. He continued absent although declaring his intention to return, and in 1826 the attachment was issued. Such absence, as lie left no family, completely prevented the institution of a suit, against him by ordinary process, and was held, under all the circumstances of the case detailed in the report, a good ground for an attachment under a Statute that required a residence abroad to authorize such process to be issued. In mentioning this case, it is not intended to limit the operation of this clause of the statute to cases of like circumstances, is merely alluded to as a case in which the absence of the debtor from his place of abode had the effect of preventing the service of ordinary process.

While it is not admitted, that every cnsual and temporary absence of the debtor from his place of abode, which, from the brief period of his~ absence, may prevent the service of a summons, is a legal ground for issuing an attachment against his property, it is difficult to define the character and prescribe the duration of the absence which shall justify the use of this process. It may be asserted, however, that where the absence is such, that if a summons issued upon the day the attachment is sued out, will be served upon the defendant in sufficient time before the return day to give the plaintiff all the.rights whieh he can have at the return term, the defendant has not so absented himself as that the ordinary process of lav/ cannot be served upon him. This is probably sufficient for the present case. It shows the point iu which, in our judgment, the court erred in the instruction given to the jury.

It is proper here to remark, that in construing this statute, it is not allowable to extend its operation to cases which are not within the evil it was designed to remedy. It. is a statute under which much oppression may be practiced, and the legislature have felt the necessity of throwing guards around those against whom it may be employed. If this court should sanction its use in a case not within the true scope and spirit of the act, upon the supposition that it may be brought within its letter, to that extent the precautions taken by the legislature to prevent the abuse of the process, would be useless to the injured party.

Witli the concurrence of the other judges the judgment is reversed and the cause remanded.