62 Mo. App. 443 | Mo. Ct. App. | 1895
When the affidavit for attachment is founded upon facts derived from the defendant, which, if true, fully justify the attachment, and by reason thereof the plaintiff acted, is the defendant estopped from denying the truthfulness of his statements? The record in this case presents that question for decision, and it arises in this way: The plaintiff instituted suit by attachment against the defendant before a justice of the peace. The grounds of the attachment were that the defendant was about to remove from the state with intent to change her domicile, and was about to remove her property or effects from the state with the intent to hinder, delay or defraud her creditors. The defendant filed a plea in abatement putting in issue the truth of the alleged grounds of attachment. On a trial before the justice the issues raised by the plea in abatement were found in favor of the defendant. Afterward the plaintiff obtained judgment on the merits. Upon the same day he took an appeal from the verdict and judgment on the plea in abatement. On a trial de novo in the circuit court the issues were found for him. The court, however, set aside the verdict and granted the defendant a new trial for alleged error in the following instruction which the court had given, to wit: “The court instructs the jury that, if they believe from the evidence that, prior to the institution of this attachment suit, defendant told the plaintiff that she was about to leave this state and go to another state, intending to live there, or words to that effect, and that plaintiff, relying upon such statement and believing the same to be true, made the affidavit upon which the present attachment is based, then the jury are instructed that they must return a verdict in favor of the plaintiff; and, if you believe from the evidence that she made such statement and that the plaintiff relied upon the
The evidence was sufficient to justify the instruction, but the defendant insists, and the court finally so ruled, that, on a trial of the issues raised by a plea in abatement in an attachment proceeding, the plaintiff must prove the truth of the facts alleged in the affidavit as grounds of the attachment, and that the principle of estoppel as stated in the instruction could have no application.
The rule undoubtedly is that the plaintiff in attachment must prove the truth of the facts stated in the affidavit, but this burden is fully sustained by proof of declarations of the defendant, which, if true, justified the attachment, and if, in instituting the suit, the plaintiff relied upon such statements and believed them to be true, it is immaterial whether they were true or not; or, stating it differently, the defendant will be precluded from showing the truth, if, by reason of his falsehood, the plaintiff has been induced to institute the suit from which he can not recede without subjecting himself to the payment of damages and costs. Cocke v. Kuykendall, 41 Miss. 65; Roach v. Brannon, 57 Miss. 490; Livermore v. Rhodes, 27 How. Prac. 506; Horn v. Cole, 51 N. H. 287. Applying the rule to the case before us, it seems quite clear that the instruction was right; for the evidence was direct and positive that the defendant said to the plaintiff that she was about to remove from the city of St. Louis to the state of Pennsylvania for the purpose of changing her domicile, and the plaintiff testified that he believed the statement to be true, and on the faith of it he began the attachment suit.
The respondent also relies upon the decision of the Kansas City court of appeals in the case of Rheinhart v. Grant, 24 Mo. App. 154. In that case the tiff relied upon a letter written to him by the defendants as conclusive proof of their intention to conceal or convey their property with intent to defraud their creditors. Such a construction of the letter was permissible, perhaps, but it would have to rest upon inference, upon which an estoppel could not arise, as was decided by the supreme court in the Cooper case, supra. For this reason the conclusion reached was right, but, as we apprehend, a misunderstanding of the decision in the Cooper case led the Kansas City court of appeals into an erroneous discussion of the application of the rule of estoppel in such cases.
The only remaining case in this state, in which the question has been alluded to, is that of Eisenhardt
We conclude that the first impressions of the learned trial judge were the best, and, therefore, the judgment sustaining the motion for a new trial will be reversed and the cause remanded.