182 Mo. App. 440 | Mo. Ct. App. | 1914
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 notes 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 have 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
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 of 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
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 justice 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 copy), 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 court 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. "Where 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. Gilkeson, 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 attachment 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
The striking out of the amended affidavit for attachment could have had no greater effect than the releasing of the attached property from the custody of the law pending this action, 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 strike 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 claimed, therefore, that the amended affidavit in attachment had anything to do' with the cause of action, much less to have made a complete change therein.
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 or 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 said in Henderson v. Drace, 30 Mo. 358, 363, that an attachment should never be dis
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 change 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 causes 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