Snead v. Wegman

27 Mo. 176 | Mo. | 1858

Richardson, Judge,

delivered the opinion of the court.

The twenty-first section of the second article of the attachment act of 1845 declares that “ when property shall be seized on attachment, which is likely to perish or depreciate in value before the probable end of the suit, or the keeping of which would be attended with much loss or expense, the justice may order the same to be sold by the constable in the same manner and on the same notice as goods are required to be sold on fieri facias, and tbe proceeds of such sale shall remain in the hands of the constable, subject to be disposed of as the property would have been subject if it had remained in specie.” It can not be doubted that if the boat had not been sold Snead would have been entitled to the possession of it after the dissolution of the attachment by the nonsuit of the plaintiff; and having prevailed in the suit, judgment for costs would have been rendered against the losing party. The forty-fifth section of the same act provides, that “ when property is seized on attachment, the justice may allow the officer having charge thereof such compensation for his trouble and expenses in keeping and maintaining the same as shall seem reasonable and justand, as the measure of compensation is not fixed by law, the officer is not permitted to determine the amount, but it must be ascertained and allowed by the justice ; and until it is so allowed he has no demand against either of the parties to the suit. When, however, his compensation for his trouble and expenses in taking care of the property is properly allowed, the allowance would be taxed as costs in the cause and would fall on the unsuccessful party. The boat having been sold, Snead had the right after the nonsuit to follow the proceeds of the sale in all respects as if the property had remained in specie ; and if he was not liable for the general costs of the suit, it is difficult to perceive on what principle he was bound to pay this demand of the constable.

The defendant tendered to the plaintiffs before the commencement of this suit a portion of the proceeds of the sale, and it can not now be said that he had no notice of the dissolution of the attachment.

The attachment was against Snead alone, and the officer could only seize and sell his interest; therefore the money in the defendant’s hands belonged to Snead, in which his co-plaintiff had no interest and was improperly joined in the action ; but the objection to the misjoinder was not raised in the court below, and if it had been taken the petition could have been amended by striking out the name of Shelton. (2 R. C. 1855, p. 1258.)

The judgment will be reversed and the cause remanded, with leave to the plaintiffs to amend the petition by striking out the name of Shelton.

The other judges concur.