Kritzer v. Smith

21 Mo. 296 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

As to the objection stated in the brief, that the bond for the attachment was not made payable to the state of Missouri, it may be answered that no point on the validity of the bond was made in the court below. In thus meeting the objection stated, we are not to be understood as expressing the opinion that the bond in this case would not have supported an action.

There was no error in refusing leave to the defendant below to file his demurrer, as we are of the opinion that it contained no cause affecting the plaintiff’s action.

1. On the face of the petition, it appeared that the time for the payment of the note on which the suit was brought, had not arrived; and the word “due,” used in the petition, must be construed to mean as it does in the saying debitum in presentí solvendum in futuro. The law authorized proceedings by attachment against debtors in certain circumstances, when the debt was not payable till a time posterior to the bringing of the suit. With this law in the mind, the proceedings would have been entirely intelligible. It was no more necessary to refer to that than to any other general statute.

2. If it had appeared that the defendant had any defence to the action of the plaintiff, the court, under the circumstances, should have lent an indulgent ear to it; but as it does not appear from any thing in the record that there was any real de-fence to the merits of the action, we cannot perceive any ground on which we would be warranted in reversing the judgment. The defendant, we conceive, was not bound to plead to the action until after the note on which the suit was brought became due.

3. In whatever light it may be viewed, we cannot see any ground on which the objection to the deposition of the defendant, Smith, given in another action, can be upheld. We take it for granted that the handwriting of Smith, the defendant, whose name is subscribed to the deposition, was proved or admitted, inasmuch as the bill of exceptions states that “ the identity of the defendant with the deposition is not disputed.”. His name being subscribed to the deposition, on no ground could it be refused as an admission. It was evidence, just as a letter or voluntary affidavit would have been. There is nothing in the practice act of 1849 which can affect this question. That a party can be sworn as a witness in a cause, can be no reason why his admissions may not be read against him. It was a rule of the common law that what a witness swore on a trial between others, subjecting him to an action or the payment of a debt, might be given in evidence against him in a suit in which he was a party. He was not exempt from giving such testimony. He was at liberty afterwards to explain his evidence. This we conceive to be the common law on this subject, confirmed by an act of parliament, made in accordance with the views of a majority of the English judges. We have a similar statute. Irrelevant questions, put with a view to extract evidence from the witness against himself, would be discountenanced, and all courts would protect a witness in his refusal to answer them. Questions improperly put, yet if answered, the answer will be evidence against the witness. This matter is so plain that it cannot be necessary to say more upon it.

As the deposition was read as an admission, regularly, the party reading it should have read the whole. The distinction is that, when an answer is read as a part of the pleadings in the cause in which it is filed, only such parts may be read as the party desires ; but when it is taken from the cause in which it is filed and read in another proceeding, as an admission, there the whole of it must be read by the party offering it. The course pursued on the trial was not regular, but as it does not appear that there were any other parts of the deposition read which varied the sense of those parts which were read, we cannot reverse the judgment for that cause. The deposition read on the trial is in the record, and we do not see that the party Was injuriously affected by the omission to read the whole of it. (3 Greenl. 1 Starkie, 290, 1, 2, 3.)

4. As there were issues taken on but two of the causes alleged for suing out the attachment, there being a general ver-diet for ¿he plaintiff, does not create any error, as either of the causes on which issue was taken was sufficient to support the attachment. The omission to take issue on the third ground stated in the affidavit for the attachment, was no admission of its truth ; and if it amounted in fact to such an admission, the plaintiff is not affected thereby, although it may be that this ground of itself would not sustain an attachment under the circumstances.

5. There is no warrant in the statute for the idea contained in the third instruction asked by the defendant; it was therefore properly refused. The instructions given clearly set forth the law applicable to the case.

6. The judgment in this cause was a general one. The 59th section of the 1st article of the law concerning attachments enacts that, “ where there is a general judgment against the defendant, the execution shall be a common fieri facias, which may be levied upon all the property of the defendant subject to execution, whether attached in the cause or not.” The judgment and award of execution, therefore, in this case is erroneous, inasmuch as the court undertook to specify what property should be sold. The judgment being a general one, as required by the pleadings, the court had no authority to condemn the attached lot to be sold, as under such a judgment the attached property need not necessarily be sold. If there is other property sufficient to satisfy the execution, the defendant may surrender it and have the attached property reserved, if he wills it. This is a right the execution law gives him, and which the court had no power to take away.

The judgment will be reversed, and a general judgment will be entered here, such as the law requires, and the defendant in error will pay the costs. The other judges concur.