Mound City Engraving Co. v. Mobile & Ohio Railroad

146 Mo. App. 463 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

(after stating the facts).— On the authority of the case of Wisecarver v. Mercantile Town Mut. Ins. Co., reported 137 Mo. App. 247, 117 S. W. 698, and of Thomason v. Ins. Co., 114 Mo. App. 109, the opinion of the majority of the court being after-wards affirmed by the Supreme Court in the same case, reported 216 Mo. 485, the judgment of the circuit court in the case at bar must be affirmed. All of the matters complained of in the motion to quash the return appeared on the face of the return and hence, as in the above cases determined, must be and could only be reached by a motion to quash. It is further decided in thoses cases that when such motion has been filed and is overruled, that the garnishee, although excepting, loses the benefit of it if he answers over or appears to the merits, and that such is the result even when he sets up these same grounds in the answer by way of plea in abatement, also answering to the merits. This is held to be the law under our Code, for defects appearing on the face of the papers must be taken advantage of by motion or demurrer, and cannot be by answer which includes a plea in abatement. The motion to quash here before us, in every one of the paragraphs or reasons assigned, refers to the alleged defective recitals, as being facts shown “upon the face of the return” to the summons of attachment.

In so far as it is attempted in and by the answer to attack and put in issue the truth of the recitals in the constable’s return, it is sufficient to say, that for the purposes of this case, that return is conclusive. If the return is false in fact, the remedy is by suit on the officer’s bond. [Smoot v. Judd, 184 Mo. 508; Taussig v. Railroad, 186 Mo. 269; Cornwall v. Bottling Co., 128 Mo. App. 163.]

The judgment of the circuit court is affirmed.

All concur.