9 Mo. App. 47 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is a suit brought by attachment, and founded on promissory notes and open accounts. There was a plea in abatement, and a trial before a jury as to the existence of the grounds of attachment. The court, after hearing the evidence, instructed the jury to find for the defendants, and there was judgment accordingly on the plea in abatement. The plaintiffs filed their motion for a new trial, and bill of exceptions, and at a subsequent term there was a trial upon the merits, and a verdict and judgment for the plaintiffs. Afterwards, and at the same term, the plaintiffs filed an affidavit for appeal, and bond, and on motion an appeal was allowed it from the judgment of the court below, on the plea in abatement.
The first question which arises, is on motion to dismiss the appeal, the respondents contending that the appellants cannot appeal from an interlocutory order, such as the decision on the plea in abatement, and that no appeal lies from the judgment on the merits, as it was the judgment asked for by the plaintiff. It is, however, clear that the plaintiff in an attachment-suit may be aggrieved, in the sense of the statute as to appeals, by such a judgment or decision in respect to the plea in abatement as destroys his lien on the property attached. It would be a strange anomaly if there was no way in which he could secure, in an appellate court, review, of action of the trial court by which he had been deprived of a right on which depended the value of his judgment on the merits. To this review both parties are equally entitled; and, in fact, in many cases this issue will be the only contested issue, the
Upon the trial of the plea iu abatement, the defendants demurred to the evidence, and the court instructed the jury to find for the defendants. It is complained by the appellant that tlie case should have gone to the jury, as there was evidence tending to prove the issues. These were that the defendants had fraudulently conveyed or assigned their property or effects so as to hinder and delay their creditors ; that they were about to do the same ; that they had fraudulently concealed, removed, or disposed of their property or effects so as to* hinder and delay their creditors ; and that they were
There were some circumstances of suspicion surrounding the’ deeds of trust given by the defendants, but a case'is not
The action of the court below was correct, and the judgment will be affirmed.