115 Mo. App. 237 | Mo. Ct. App. | 1905
(after stating the facts)’. — Section 3850, Revised Statutes 1899, provides that suits before a justice of the peace may be instituted by the voluntary appearance of the parties or by process; that the process shall be by summons or attachment, and that the action is deemed commenced “if by process, upon the delivery of the writ to the constable to be served and he shall note thereon the time he received the same.” This statute is conclusive upon this question, and in view of its positive
It results from the arbitrary mandate of the statute in this behalf that the rule in this respect is somewhat different from that usually obtaining in attachment suits instituted in the circuit court. In those cases, it has been frequently decided that the plea in abatement puts in issue the truth of the affidavit at the time the writ was actually issued. [Graham v. Bradbury, 7 Mo. 281; McClanahan v. Brack, 46 Miss. 246; Drake on Attachment (7 Ed.), 1891, sec. 111. The generally accepted doctrine in this State on the subject of the time of the commencement of an action in the circuit court is that the filing of the petition in a court of record is the commencement of the action and not the date of the issuance or service of summons thereon. This has been held in cases involving the running of the statute of limitations.
This court, in Hornsby v. Stevens, supra, said: “As to actions begun before justices of the peace, the question admitted no controversy. It was plainly provided in section 6136, supra (now 3850), that such actions were not deemed to have been instituted until the process was delivered to the constable for service.” Prom all of which, it is self-evident that those authorities holding that the plea in abatement puts plaintiff on the proof of the truth of the causes existing at the time the writ was actually issued, are not in point here for the very good reason that the Legislature, which alone was vested with full and complete authority in that behalf, has prescribed a different rule of decision as to Avhen an attachment suit before a justice of the peace is instituted. It follows as a necessary sequence that the plea in abatement in causes by attachment instituted before a justice of the peace, puts in issue the truth of the allegations contained in the affidavit on the day the writ was delivered to the constable for service, and in this case, the plea puts in issue the truth of the affidavit on the very day that the ordinary process of law was had on appellant by the actual service thereof on a member of his family over fifteen years of age, at his usual place of abode.
2. Therefore, to sustain the attachment, it must be shown that the causes alleged existed at the time of the commencement of the suit as thus fixed. The two grounds alleged for the attachment involve the idea that the ordinary process of law could not be had upon defendant. Our proceeding by attachment is of statutory origin, is in derogation of the common law and must be strictly pursued. It will not suffice to show conduct of the defendant prior to the suing out of the Avrit alone, but it must be shown what Avere the facts as to the absconding or absenting himself or concealing himself so that the ordinary process of laAV could not be served upon
It has been said that when a man leaves his family residing at his residence, although he may be personally absent an indefinite length of time attending to his business, no attachment would lie, on the ground that he has concealed himself so the “ordinary process of law cannot be served upon him,” because the law has pointed out a mode by which service can be had, as above indicated. [Adams’ Admr. v. Abernathy, 37 Mo. 196.] And what was said in that case is equally pertinent in a case where the allegation on which the attachment rests is that he has absconded or absented himself so that the ordinary process of law cannot be served upon him; for in either case the idea involved, which authorizes the attachment, is the withdrawing himself so as to evade all means of ordinary process. The return of the officer under which the respondent is asserting his judgment, shows conclusively upon its face that the appellant had on the very day the suit was commenced, a usual place of abode, in this State and that a member of his family over fifteen years of age was thereat, on whom ordinary process could be served and was actually served; and that this return is conclusive and that its recitals impart absolute verity between the parties to this controversy, is settled beyond question. In the very nature of things, the return must be held conclusive upon respondent as he predicates his recovery thereon which he seeks to sustain in this court in this preceeding, and he cannot impeach it. [State ex rel. v. Finn, 100 Mo. 429, 13 S. W. 712;
It appears from what has been said that at tbe time of the commencement of the attachment, the grounds alleged authorizing the proceeding did not exist, and that under the authorities, we are called upon to reassert the language of Judge Gamble in Kingsland v. Worsham et al., 15 Mo. 660: “Where the absence is such that if a .summons issued upon the day the attachment is sued out (and in this case, that is the day the writ was delivered to the constable for service) will be served upon the defendant in sufficient time before the return day to give the plaintiff all the rights which he could have at the return term, the defendant has not so absented himself as that the ordinary process of law cannot be served upon him.” [Chariton County v. Moberly, 59 Mo. 241; Paddock Hawley Iron Co. v. Graham, 48 Mo. App. 642; Ellington v. Moore, 17 Mo. 424.]
It conclusively appears from the record that the respondent had neither absconded, absented himself nor concealed himself so the ordinary process of law could not be served upon him at the time the suit was commenced. The attachment must therefore fail. The learned trial judge erred in refusing the peremptory instruction requested on the plea in abatement and for that reason the judgment sustaining the attachment will be reversed.
This appeal, however, is from the judgment of the court below on the merits of the case as well as on the plea in abatement. There are no errors assigned here as to the proceedings on the merits, and none appear on that branch of the case. The judgment on the merits will therefore be affirmed. It is so ordered.
