168 Mo. App. 134 | Mo. Ct. App. | 1912
The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of the act of the Legislature, approved June 12, 1909. [See Laws of Missouri, 1909, p. 396; see, also, sec. 3939, R. S. 1909.] In due time the cause was' disposed of by the Springfield Court of Appeals, through an opinion prepared by Judge Nixon of that court, as will appear by reference to Matthews v. Eby, 149 Mo. App. 157, 129 S. W. 1016. Subsequently, the Supreme Court declared the said legislative act, which, purported to authorize the transfer of cases from this
The case has been argued and submitted here and ■duly considered. Upon reading the record we are satisfied with and adopt, so far as it relates to the question whether the debt sued for was fraudulently contracted, the statement of facts set forth in the opinion of the Springfield Court of Appeals above referred to, as follows:.
“This was an action brought in the circuit court of Scott county on an account in the sum of $375, and a writ of attachment was sued out in aid thereof, the ground for attachment being that the debt sued for was fraudulently contracted. This writ was levied on three mules, the subjects of this controversy. The defendant filed a plea in abatement which, among other things, denied that the debt sued for was fraudulently ■contracted. The veidict of the jury sustained the attachment. The defendant then answered, but upon plaintiff’s motion, a part of the answer -yas stricken out, and defendant declining to plead further, judgment was rendered for plaintiff for the amount sued for. Defendant has appealed and insists that the attachment should not have been sustained because the «evidence does not show that the debt sued for was fraudulently contracted.
“This litigation had its inception in the sale of three mules. The evidence shows that plaintiff was a ■dealer in mules, maintaining a mule barn in Sikeston,■ •Scott county, Missouri. That about the 1st of Apri], 1908, defendant appeared at plaintiff’s mule barn, and, after having examined several mules, had two hitched to a wagon and tried them and said he would take them, together with another mule he had examined.*138 The two mules were priced at $190 each and the separate mule at $175, making a total of $555, hut plaintiff told defendant he would sell the three for $550. There is a direct conflict in the evidence as to what then occurred. Plaintiff testified that defendant went up town and then came hack and caught the mules and said: ‘I haven’t got my cheek book here and I can’t pay yon for this now, but I will send you a check when I get home. ’ Plaintiff says he went up town and asked a man who was well acquainted in that country what he thought about letting the mules go on that kind of a promise and that he was told it would be perfectly safe. That plaintiff then told defendant he could take them, but to send the check at once. That he waited about two weeks and then wrote to defendant. Not receiving a reply, he wrote again, but to no avail. Plaintiff says that after about five weeks he sent Alfred Emery to the defendant; that the defendant sent back $100 with a promise to pay the balance at once; that, after waiting about a week longer, he wrote again,, and then defendant came from his home in New Madrid county to Sikeston and wanted to turn back the two mules which had been priced at $190 each, but plaintiff refused to take them and told defendant to get the matter settled up by the following Monday. That defendant returned on Monday and left the two-mules at plaintiff’s mule barn in plaintiff’s absence. They met later, however, and had some words, defendant saying one of the mules was not worth $1.50. Plaintiff then offered him $150 for the mule but defendant would not take less than $165 which plaintiff refused to give because the mule had become lame and both of them had deteriorated in value. 'Defendant then paid him seventy-five dollars'more, leaving a balance due of $375, and plaintiff prepared a note for that amount and gave it to the defendant with directions to get it signed by certain named persons se that he would have something to show for the sale.*139 Plaintiff states tliat he then saw defendant ‘ acting peculiar’ and that defendant slipped back and got the bridle he had had on one of the two mules which he had brought to the barn, and wrapped it up in his rain coat, walked around ‘back there’ a while, and then went out. That plaintiff was then convinced that defendant was trying to beat him by leaving the mules there anyhow. That he went out and found that defendant had also brought the third mule to town, and he at once started attachment proceedings and secured possession of the three mules. . . . Defendant’s testimony was that he did not agree to send a check at once, but that he was to take the mules home and pay. at a future date when his brother had secured some money on a loan; that nothing was said about a check; that the mules were warranted ■ and that if they were not ‘all right’ defendant could return them. . . . Defendant’s own evidence shows that he had no money in the bank, but was relying upon his brother to make a loan and obtain the money.”
Our learned brethren of the Springfield Court of Appeals treated the case upon the foregoing facts as if there was nothing more, by way of fraud, than the defendant’s promise to send defendant a check on his arrival home and concluded' that such mere promise was not such a false representation as to constitute a fraud, though it was unperformed,- citing Bullock v. Wooldridge, 42 Mo. App. 356; Stocking v. Howard, 73 Mo. 25. We cannot agree that the case should be so treated. In order for a debt to be fraudulently contracted on his. part, “the debtor must have been guilty of some material deceptive'act, word or concealment, done or suffered by him with the intent to induce the opposite party to consent to the debt. The opposite party must have relied upon such false acts or manifestations of the debtor, and yielded his consent to the contract on the faith thereof.” [Finlay v. Bryson, 84 Mo. 664.] It is clear from this definition or rule
But the point is made that the judgment should bo reversed by reason of the action of the circuit court in overruling defendant’s motion to dismiss the cause for want of jurisdiction. The cause was instituted in the circuit court of Scott county and the jurisdiction depends upon the validity of the attachment, because the defendant resided in another county and was not served with summons in Scott county where the plaintiff resided. [Sec. 1751, R. S. 1909; Brackett v. Brackett, 61 Mo. 221.] The objection raised by the motion to dismiss is aimed at the means by which the court acquired jurisdiction through the execution of its attachment process.
The following facts were disclosed at the hearing upon the motion: On May 4', 1908, defendant resided and had the three mules in New Madrid county. The plaintiff resided and had his mule barn at Sikeston in Scott county. On that day the defendant came from New Madrid county to Sikeston in Scott county bringing with him the three mules. One, á bay mule, he drove, and the other two, the gray mules] he led. Arrived in Sikeston, he tied the bay mule at the usual hitching" place, and took the ‘ two gray mules to plaintiff’s mule barn, where he insisted on plaintiff taking them back' as unsound.. He testified that plaintiff, did take them back-and' received a payment which finished paying for the bay mule; ' According to plaintiff’s version, however, he'refused- to
What is the effect of plaintiff’s conduct as above ■disclosed upon this proceeding? The law is, that an attachment levy effected by unlawful or fraudulent means is illegal and void and confers no jurisdiction. [Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 518, 75 S. W. 445; Drake on Attachment (6 Ed.), sec. 193.] This is upon the principle that courts will not lend their assistance to effectuate fraudulent or unlawful practices of suitors (Holker v. Hennessey, 141 Mo. 527, l. c. 536, 42 S. W. 1090); or, as otherwise ■stated, no one should-be permitted to take advantage ■of his own wrong, and no lawful thing can stand on ■an unlawful foundation. [Rood on Attachments, sec. 186, citing Holker v. Hennessey, supra.] So, where one came into possession of goods of another in one state fraudulently or as a trespasser and took them into another state without the consent of the owner in order that a writ of attachment in that state could Ae levied upon them, it was held that the levy conferred mo jurisdiction and was void. [Rosencranz v. Swofford Bros. Dry Goods Co., supra; Powell v. McKee, 4 La. Ann. 108.] A like ruling was made where a slave was decoyed into the jurisdiction of the court and there attached. [Timmons v. Garrison, 4 Humph. (Tenn.) 148.] So it was held that if the levy be made Ay means of a trespass, it is vitiated. . [ Bailey v. Wright, 39 Mich. 96.] Likewise, where the sheriff , in one county seized the property, pretending that he seized it by virtue of a writ of attachment, and car-, xied it back to his own county, where he made a, for-¡ mal levy under a writ in his possession, the .levy v{us
Now, in the case at bar, in order to detain the property in Scott county in order that it might be subjected to attachment process therein, the plaintiff jased the writs of attachment issued by the justice of ' the peace. The justice had no jurisdiction, as plaintiff knew, to issue a writ to secure the sum demanded by him, so, in order to accomplish his purpose regardless of the law, plaintiff conferred upon the justice a ’fictitious appearance of jurisdiction by splitting his. ' cause, of action, and bringing two suits. This was an ’unlawful practice, a proceeding which the law never 'tolerates. '.'[Robins v. Conley, 47 Mo. App. 502; note to Reynolds v. Jones, 44 C. L. J. 306; Wagner v. Jacoby, 26 Mo. 532; Laine v. Francis, 15 Mo. App. 107.] It "was'u fr,aúd in law.' Yet by this' means, fraudulent ‘ ¿fid'"Unlawful attachment "writs ' were procured, • the
We may add here that we have proceeded on the theory, without deciding, that the motion to dismiss, was a proper mode of presenting the question of jurisdiction. We have done this because both the parties as well as the trial court proceeded on that theory and no question in that regard is raised here. That the-trial court did not overrule the motion because it was-an improper mode of raising the question of jurisdiction is made clear by the record, which discloses that the court struck out, on plaintiff’s motion, a like plea, to the jurisdiction from defendant’s plea in abatement of the atttachment and from defendant’s answer to the merits, the defendant duly excepting.
For the reasons above stated the judgment is reversed and the cause remanded with directions to the-circuit court to set aside its order sustaining the attachment and enter an order dismissing the cause.