137 Mo. App. 261 | Mo. Ct. App. | 1909
— This is a suit on an attachment bond. Plaintiff recovered and the defendant appeals. During the progress of the trial, the suit was dismissed as to the surety and the cause proceeded to judgment against the defendant, who is the principal obligor in the bond. It appears the defendant instituted an attachment suit in which the present plaintiff was made defendant, and the attachment writ was levied upon a considerable amount of property owned by her. Plaintiff employed counsel and defended the attachment in
The evidence is ample to support the judgment. The first and principal argument advanced for a reversal is levelled against the sufficiency of the petition. It is said it fails to state a cause of action for the reason that it does not pointedly allege non-payment of the damages accrued to the plaintiff herein. The petition recites the facts pertaining to the institution of the attachment suit by the present defendant in which the present plaintiff was made defendant, and recites the execution of the bond in suit, in aid of the attachment therein sued out. The obligation and statutory conditions of the bond are then copied in the petition in haee verba. And it is alleged that there have been several breaches of said bond in that the plaintiff failed to prosecute said attachment suit with effect, the same having been finally determined in favor of the present plaintiff in the circuit court. It is averred therein that the defendant caused to be attached under such attachment suit, plaintiff’s separate personal property of the
It is suggested the mere averment that the plaintiff was damaged in the sum of three hundred dollars by reason of the facts theretofore alleged in the petition,
Plaintiff recovered a verdict for two hundred dollars. The judgment entered thereon is not precisely as it should be, in that instead of being for the penal sum of the bond, to be satisfied by the payment of two hundred dollars and costs, it recites generally that the plaintiff have and recover of the defendant the sum of two hundred dollars with costs, etc. It seems that judgments have been reversed in this State for such irregularities. [See State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; State ex rel. Cochran v. Cooper, 79 Mo. 464.] Section 865, Revised Statutes 1899 (sec. 865, Mo. Ann. St. 1906), commands that judgments shall not be reversed unless it appears error was committed against the appellant materially affecting the merits of the action. In view of this legislative command, it seems that the judgment in this case ought not to be reversed and the cause remanded on such a technical pretext when it is apparent
The trial court should modify its judgment by an entry to the effect that the plaintiff have judgment for the penalty of the bond, to be satisfied by the payment of two hundred dollars and interest thereon from date of judgment, together with costs of suit, for which execution issue. Thus modified, the judgment will be affirmed. It is so ordered.