| Mo. Ct. App. | Nov 22, 1897
This is an action which was brought on an attachment bond. There was a trial and judgment for the relator and the defendants appealed.
Juat7achmecnurts: meSts0 the As the relator did not put in issue before the justice the facts alleged in the affidavit for the attachment by his verbal plea in the nature of a plea in abatement, but on the contrary proceeded to trial on the merits without doing so, he thereby confessed the matters alleged in the said affidavit for the attachment. Musgrove v. Mott, 90 Mo. 107" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/musgrove-v-mott-8008795?utm_source=webapp" opinion_id="8008795">90 Mo. 107; Richnitzer v. R’y, 60 Mo. App. 409" court="Mo. Ct. App." date_filed="1895-01-15" href="https://app.midpage.ai/document/rechnitzer-v-missouri-kansas--texas-railway-co-6617949?utm_source=webapp" opinion_id="6617949">60 Mo. App. 409.
triade£ault*new It is quite true that the judgment rendered by the justice was irregular in form, but after the relator had appeared to the action, as has been seen he did, it was not within the power of the justice to render a judgment by default. The statute only authorizes a judgment by default when the defendant, who has been duly served with process, shall neglect to appear within three hours after the return of the process. R. S., sec. 6235; Borgwald v. Fleming, 69 Mo. 212" court="Mo." date_filed="1878-10-15" href="https://app.midpage.ai/document/borgwald-v-fleming-8006169?utm_source=webapp" opinion_id="8006169">69 Mo. 212. The judgment was not by default and it was
Now since it sufficiently appears that the relator appeared to the action of attachment and proceeded to the trial of the cause on the merits, he must be held to have confessed the grounds thereof alleged in the affidavit, or which is in effect the same thing, to have waived his right to plead in abatement. This is the effect of his action both at common law and under our practice act. Fordyce v. Hathorn, 57 Mo. 120" court="Mo." date_filed="1874-07-15" href="https://app.midpage.ai/document/fordyce-v-hathorn-8004599?utm_source=webapp" opinion_id="8004599">57 Mo. 120. How can it be said there was a breach of the condition of the bond when the relator confessed the grounds of the attachment, and especially so since there was a subsequent judgment for the plaintiff on the merits'?
The judgment, it is true, was improper in form, still it was for the plaintiff and. could not be set aside by the justice. The mere fact that the justice chose to designate the judgment as one of default did not, by any means, make it such. There was an appearance and trial by a jury on the merits, and consequently the judgment could not be by default. It seems to us quite clear that the trial court erred in refusing the defendants’ instruction in the nature of a demurrer to the evidence.
The judgment must accordingly be reversed.