State ex rel. Conaway v. Binney

127 Mo. App. 710 | Mo. Ct. App. | 1908

ELLISON, J.

This is an action on an attachment bond. The defendant demurred to plaintiff’s petition on the ground that it did. not state a cause of action. The demurrer was sustained and plaintiff appealed.

It appears from the petition that defendant brought suit against the plaintiff before a justice of the peace Avith an attachment in aid. ' An attachment writ was issued, but no property levied upon. A notice of garnishment was served, but the party garnished had no property or effects of this plaintiff, the defendant in that cause. This defendant, as plaintiff in that case, dismissed the case before either an answer, or plea in abatement, or interrogatories were filed. The petition alleged that plaintiff was damaged by employing an attorney to defend the attachment to whom he is obligated for a fee, and that he “lost time and expended money by reason of said attachment.”

The statute (section 3880, Revised Statutes 1899) provides for issues to be. made before a justice “in all cases where property or effects shall be attached.” The attachment was dismissed before any issues were made, for the reason that no property was seized. The statute (sections 3461-3463) provides for issues before the justice on garnishment. But no interrogatories were filed, as the party garnished had nothing of plaintiff’s and it is not alleged that he had, and, as just stated, the attachment aauis dismissed.

In our opinion no damages accrued to plaintiff. Nothing occurred to put him on his defense. His property was not disturbed, by either attachment or garnishment. If he employed an attorney it was premature, in so far as his right to an action on the bond is concerned. He is in no better position to maintain such action than if this defendant .had said and he had heard that an attachment writ was to be sued out and had thereupon employed an attorney. The fact that the writ of attachment was issued is of no consequence, if it was not executed. The employment of an attorney made in the principal case on the merits would of course give no right of action on the attachment bond. The serving of the writ as to the garnishment was an empty proceeding as no property was in the hands of the party garnished and the attachment was dismissed before any issue was made; and if there had been it would have been the garnishees privilege to have employed an attorney upon the one side and the plaintiff in the attachment upon the other. If something out of the usual course made it necessary for this plaintiff, as defendant in that case, to have employed counsel in the matter of the garnishment or the writ of attachment it is not alleged. The judgment should be affirmed.

All concur.