74 Mo. App. 162 | Mo. Ct. App. | 1898
— This petition alleges that E. A. Good-hue brought an attachment suit against the plaintiff on the ground of nonresidence, which on trial of the merits was decided in plaintiff’s favor; that plaintiff’s property was levied upon by a writ issued in said action, wherefore judgment is prayed for the penalty of attachment bond executed by defendants in said suit, to be satisfied on the payment of $161 and costs. The answer did not deny the execution of the bond, nor the termination in plaintiff’s favor of the attachment suit, but made a specific denial of the other allegations contained in the petition. On the trial of this case plaintiff recovered a verdict for $111, whereupon judgment was entered in her favor for the penalty of the bond, to be discharged on payment of the above sum. Defendants appealed.
The evidence tending to show the amount of expense and cost to which plaintiff was put in defend
We can not concur in that view. “The general rule is that if a record is lost its contents may be proved like any other document.” Parry v. Walser, 57 Mo. 172. The question of the sufficiency of the preliminary proof of loss rests largely in the discretion ■of the trial court. Kleimann v. Gieselmann, 114 Mo. 437. “The object of the proof is merely to establish •a reasonable presumption of the loss of the instrument. ’ ’ 1 Greenl. on Ev., sec. 558, p. 118, n. b.; Christy v. Cavenaugh, 45 Mo. loc. cit. 377. Proof as to the loss of .the filing papers wTas sufficient under these authorities,
It is further insisted that the court erred in instruction number 1 given for plaintiff. This instruction is voluminous and' need not be set out. It is enough to say that it submitted fully all the facts which the foregoing evidence and the admissions in the pleading tended to show, and told the jury that if these were found in plaintiff’s favor she was entitled to recover as actual damages the sum expended in attorney’s fees, in the attachment suit, for traveling expenses to and fro from her home to the county of Phelps, Missouri, where it was tried, and her hotel bills while attending said trial, in all not exceeding the sum claimed in her petition. The elements of damage specified in the instruction were clearly embraced in the established rule of law, that in an action on an attachment bond the natural and proximate damages resulting from the suing out of the writ are recoverable. State to use of Roe v. Thomas, 19 Mo. 613. It is also-well settled that plaintiff was entitled to bring such action after a verdict on the merits in her favor as defendant in the attachment suit, although she had filed no plea in abatement to that action. State to use of Clifford v. Beldsmeier, 56 Mo. 226; State ex rel. Cantwell v. Stark, 57 Mo. 566. - Much of the argument of the learned counsel for appellants in this case is devoted to the assumed want of evidence to show sufficient preliminary papers in the attachment suit. In an action on an attachment bond the obligors are not permitted to question the sufficiency of the sheriff’s return of levy or the legality of the attachment writ, for if the writ has been actually levied, the party causing its issuance is not permitted to show that the
The judgment in this ease will be affirmed.