State ex rel. Cantwell v. Stark, 75 Mo. 566

State ex rel. Cantwell v. Stark

75 Mo. 566 | Mo. | 1882

Henry, J.

This is a suit on an attachment bond executed by defendants in an attachment proceeding instituted by Stark and Merriott against relators, before a justice of the peace in Bates county, to recover $800 damages to stock of said Stark and Merriott, by reason of the communication of the Texas or Spanish fever to said cattle, by Texas, Mexican or Indian cattle, unlawfully brought into this State by said relators. The attachment bond contained the statutory stipulations, and on the trial in the circuit court, to which the cause was appealed, that court held that relators could not maintain an action on the bond, because the act under which the principal suit was prosecuted, and in which the bond was given, was unconstitutional and void, '

That act has been declared void by the'Supreme-Court of the United States, and its decision has been followed by *569this court in several recent cases. Gilmore v. R'y Co., 67 Mo. 323; McAllister v. Chicago & R. I. R. R. Co., 74 Mo. 352; Railway Co. v. Husen, 95 U. S. 465; Urton v. Sherlock, ante, p. 247. In the last of these cases it was hold that the entire act is a nullity. Many cases have been cited by respondents’ counsel in support of the ruling of the circuit court. Benedict v. Bray, 2 Cal. 254, and numerous cases decided by the supreme court of Indiana, are to that effect; but in McDermott v. Isbell, 4 Cal. 114, the court ■observed : “ It has been frequently held by this court that a party who avails himself of the process of an inferior court, cannot escape the responsibility of his own act, upon the ground that such tribunal had no jurisdiction over the subject matter in controversy. Consequently a party who sues out a writ of replevin from a justice of the peace having no jurisdiction, and obtains the property in an action on the replevin bond cannot set up as a defense the want of jurisdiction of the justice.” In Caffrey v. Dudgeon, 38 Ind. 516, the court remarks that: “It is. the settled law of this state, that where a bond or recognizance is •taken by an officer or court acting simply under statutory power, the instrument taken must be authorized by the statute, or it will be void, and in suing upon such an n strument, the complaint must set out the facts showing that the bond or recognizance was taken in a case where the law authorized it; and in many cases, it must appear that it was taken exactly or substantially in accordance with the statutory power.” Such, however, is not the doctrine on that subject in this State, and the adjudications in Indiana are, therefore, not applicable. Henoch v. Chaney, 61 Mo. 129. Nor are those cases, cited from our own reports, in which an appeal bond, filed out of time, has been held to’ impose no liability upon the makers, in point. There, no substantial benefit is secured by the appellant .by means of the bond. Here, by means of the attachment bond, the plaintiffs in that suit obtained possession of relators’ property, and we are utterly unable on principle to *570distingush between this and a replevin suit instituted in a justice’s court, of which that court has no jurisdiction, in which, by virtue of the bond, the plaintiff' gets possession of the property sued for. We are aware of a conflict of authority on the subject, but are inclined to adhere to the decisions of this court in cases analogous to this, and believe the more reasonable doctrine to be that which holds the bondsman responsible under the facts here presented.

The conditions of the bond are that plaintiffs “ shall prosecute their action without delay and with effect, * * and pay all damages that may accrue to any defendant or garnishee by reason of the attachment or any process or proceeding in the suit, or by reason of any judgment or process thereon.” The plaintiffs are not confined' in their recovery to damages that may have accrued by reason of the attachment, but by the express terms of the bond, they are entitled also to recover for any damages directly occasioned by any process or proceeding in the suit.

The judgment is reversed and the cause remanded..

All concur.