Maurer v. Phillips
168 S.W. 669
Mo. Ct. App.
1914
Check Treatment
STURGIS, J.

This suit was commenced in a justice of the peace court in Barton county, Missouri, by plaintiffs filing therein two promissory notes executed by the defendants for $77, each. One of these notes is payable to plaintiff, L. Maurer, and the other to one D. K. Griffin. It appears that plaintiff and Griffin had at sometime been partners and it is likely that these notеs grew out of the partnership business. It is admitted that D. K. Griffin had been dead for some years and that the partnership business had been long since fully settled. Just how plaintiff came to hаve the Griffin note is not disclosed. In aid of a suit thus commenced, the plaintiffs filed an affidavit for attachment, alleging several of the statutory grounds and containing the allegation that plaintiffs will be in danger of losing their claim unless the attachment be levied on Sunday. In the caption of this affidavit the plaintiffs are designated as “Maurer & Griffin, a firm composed of L. Maurer and D. K. Griffin.” It is alleged therein that plaintiffs have a just demand against the defendants, the amount of which is alleged to be $200. It appears that a change of venue was taken to another justice of the peace, where the defendants appeared and filed a motion to dismiss the cause- for *444the reasons thаt the justice has no jurisdiction; that the papers disclose two separate causes ‍​​‌‌​​​‌​‌​‌​​​‌​​​​​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌‍of action belonging to separate individuals; that there is no such firm as Maurer & Griffin; that the firm of Maurer & Griffin has long since been dissolved and the partnership affairs settled up and the firm assets divided; that D. K. Griffin is dead and plaintiffs are not-the personal representatives of sаid Griffin; that two causes of action have been improperly joined. This motion was sustained in the justice court, judgment of dismissal entered and the plaintiff appealed the case to the circuit court. The justice’s transcript shows that after the motion to dismiss was filed in his court, plaintiff asked leave to amend by striking out the name of D. K. Griffin, becausе it is conceded he is dead, and to leave the suit pending: in the name of L. Maurer on the one note payable to him for $77, but the justice refused to permit any amendment and sustained the motion to'dismiss.

When the case reached the circuit court, the plaintiff filed an amended affidavit for attachment wherein he, L. Maurer, is the sole plaintiff. This affidavit contains the same grounds for an attachment as the one filed in the justice court but alleges that the plaintiff, L. Maurer, has a just demand against the defendants amounting to $77. Thereupon the defendants filed a motion to strike out the amended affidavit for the reason that said affidavit is a complete change of the cause оf action dried before the justice of the peace. This motion was overruled. Thereupon the defendants filed their plea in abatement putting in issue the grounds of attachment alleged in the amended affidavit. Thereafter, such proceedings were had resulting in the attachment being sustained and a judgment in favor of the plaintiff on the one note payable to plaintiff. The defendants appealed to this court and the sole error complained of is that the trial court erred in refus*445ing to sustain their motion to strike out ‍​​‌‌​​​‌​‌​‌​​​‌​​​​​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌‍the amended affidavit in attachment.

The appellants rely on the proposition that the filing in the circuit court of the amended affidavit for attachment worked a complete change in the cause of action by reason of striking out the name of D. K. Griffin, as plaintiff, and substituting the name of L. Maurer, as sole plaintiff instead of Maurer & Griffin, a firm composed of L. Maurer and D. K. Griffin. It is urged that as the same cause of action must be tried in the circuit court as was tried in the justice court, such change of the cause of action is not permissible. This is a misconception of the proceedings had in this cause. Formal pleadings are not necessary in a justicе court and the notes filed with the justice were themselves a sufficient statement of the cause of action. It is said in Rhea v. Mfg. Co., 81 Mo. App. 400, 406, that: “It was the note (represented by the сopy), that furnished the foundation of the suit and not the petition; the latter was not necessary and was unauthorized by the section of the statute, supra, and should be ignored.” In a suit by attachment, where the defendant is personally served or enters his appearance to the action, as was done in this ease, ‍​​‌‌​​​‌​‌​‌​​​‌​​​​​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌‍the jurisdiction of the cоurt is not dependent on the process of attachment. The court must have jurisdiction of either the person or property of the defendant, but either will suffice. "Wherе the court’s jurisdiction is dependent on its grasp of the defendant’s property, then the regularity of the attachment process becomes all important. [Johnson v. Gilkеson, 81 Mo. 55; Hargadine v. Van Horn, 72 Mo. 370; Bray v. McClury, 55 Mo. 128 ; Burnett v. McCluey, 92 Mo. 230, 4 S. W. 694, and other cases cited by appellants.] But, where there is personal service or personal appearance by defendant, then the attaсhment proceedings is purely ancillary and in aid of the suit. The only office of the attachment in such cases is to hold in custodia legis and *446thereby conserve the property of defеndant as against any act of his pending the litigation. The canse proceeds to trial and judgment in the usual way, resulting in a general, not special, judgment and if the attachеd property be levied on and sold to satisfy the same it is by virtue of the execution and not the attachment. [Jones v. Hart, 60 Mo. 351; Philips v. Stewart, 69 Mo. 149; Maupin v. Lead Mining Co., 78 Mo. 24; Payne v. O’Shea, 84 Mo. 129, 137.] In an attachment case, “where a defendаnt is personally served with ‍​​‌‌​​​‌​‌​‌​​​‌​​​​​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌‍process or voluntarily appears to the action, the proceedings, however defective the affidavit or writ, will be valid, and the rights acquired thereby will not depend upon the attachment for their validity, but upon the judgment, which will bind not only the attached property but other property of defendant.” [Donnell v. Byern, 80 Mo. 332, 334.]

The striking out of the amendеd affidavit for attachment could have had no greater effect than the releasing of the attached property from the custody of the law pending this actiоn, even if it would have had that effect. The cause of action would have proceeded to judgment, whatever action might have been had on the motion to strikе out, and the attached property would still have been subject to levy and sale under execution if it could yet be found as defendants’ property. It cannot be сlaimed, therefore, that the amended affidavit in attachment had anything to do' with the cause of action, much less to have made a complete change thеrein.

We have a statute, section 1850, Revised Statutes 1909, which provides that: “The court shall, in every stage of the action, disregard any error or defect in the pleadings оr proceedings ‍​​‌‌​​​‌​‌​‌​​​‌​​​​​​‌‌​‌‌‌‌‌‌‌​‌‌‌‌‌‌‌‌​​​​‌​‌‍which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. ” It is sаid in Henderson v. Drace, 30 Mo. 358, 363, that an attachment should never be dis*447solved on account of the insufficiency of the affidavit when the plaintiff is willing to make and file a new and sufficient affidavit; and such is the effect of оur statute, section 2341, Revised Statutes 1909, governing attachment proceedings. This implies that affidavits for attachments may he amended almost without limit. [Claflin v. Hoover, 20 Mo. App. 314; Norton v. Flake, 36 Mo. App. 698 ; Mackey v. Hyatt, 42, Mo. App. 443; Burnett v. McCluey, 92 Mo. 230, 235, 4 S. W. 694; Avery v. Good, 114 Mo. 290, 21 S. W. 815.]

Should we regard the affidavit for attachment as being in the nature of a statement of the cause of action for the purpose of sustaining the attachment and the plea in abatement as an answer "thereto, then it would follow that as the defendants did not stand on their motion to strike out but filed their plea in abatement and went to trial, thus putting in issue the new cause of action for attachment, then defendants must be held to have waived any alleged departure from the original cause of action. [Anderson v. Railroad, 129 Mo. App. 384, 387, 108 S. W. 605; Grymes v. Lumber Co., 111 Mo. App. 358, 362, 85 S. W. 946; Muir v. Railroad, 168 Mo. App. 542, 544, 154 S. W. 877.]

Courts should be liberal in allowing amendments. When care is taken to see that the opposite party is given time to meet any new allegations or issues made by any сhange in the pleadings, the objections to allowing amendments therein are generally found, to be purely technical and tending to defeat rather than promote justice. In this case the amended affidavit in attachment was filed to meet the objections of defendants that the two notes filed showed two' separate causеs of action, one of which was not in favor of plaintiff. The plaintiff then abandoned his right to recover on the one note not payable to him and filed the amended affidavit in attachment covering the one note which is payable to him. The action of the trial *448court in permitting this to be done is approved and the judgment will be affirmed.

Robertson, P. J., concurs. Farrington, J., concurs.