23 Mo. App. 474 | Mo. Ct. App. | 1886
John Shobe and J. M. Johnson, as partners under the firm name of Shobe and Johnson, brought suit by attachment against P. B. Cole, on a contract respecting the caring for and the feeding of certain cattle owned by Shobe and Johnson. The ground of attachment was non-residence. The usual bond was given by Shobe and Johnson with their co-defendants in this action as surety. Cole did not file a plea in ábatement, but pleaded to the merits with the result that Shobe and
The surety, Collins, made as his separate answer to the petition a general denial. Shobe and Johnson filed a joint separate answer. Said answer contained a general denial, and next set up what is denominated by counsel for defendant an equitable set-off, growing out of the contract on which the attachment suit was based. The special defence thus pleaded was stricken out by the court on the motion of plaintiff, and need not be noticed further by us, for the reason that the action of the court in respect of it was not set up in the motion for a new trial as one of the reasons therefor. And we may' make the same remark concerning the special defence, of the same character, set up in the separate answer of the defendant, Johnson, which was also stricken out by the court. “All exceptions not brought to the attention of the trial court in a motion for a new trial are deemed waived.” McCord v. Railroad, 21 Mo. App. 93, and cases cited ; Fox v. Young, 22 Mo. App. 383 ; Putnam v. Railroad, 22 Mo. App. 592.
Against the defendants’ objections the court permitted Cole to testify to the amount expended by him in procuring the attendance of two witnesses from Kansas at the trial of the attachment suit. The relator admitted that the depositions of such witnesses had been taken and were on file in the court, in which the attachment suit was tried. And on this question the court declared the law to be that if such were the facts the relator could not recover on account of the expense of procuring tlxe attendance of said witnesses. The defendants were notinjux’ed by the admission of said testimony. And we need not consider the objections made to its introduction.
The attachment suit was begun on September 22, 1882 ; the non-suit was taken on April 15, 1834. W. M.
The defendants introduced a certified copy of the ■claim as made out and presented to the probate court for .allowance against Doyle’s estate. It was thus shown that on April 17, 1884, Cole assigned said claim for value .received to John W. Moore, who was one of his attorneys. It was also made to appear that interest from September 16, 1882, to May 1, 1884, amounting to $8.40, -was asked and allowed on said claim. The court was .■asked by the defendants, but refused to declare the law to be, “that, if Moore, to whom the claim against Doyle was assigned, made claim for interest to the amount of $8.40 in the probate court, and that said amount was allowed as interest .from September 16, 1882 to May, 1884, then the relator cannot recover interest on account of the attachment of said money in Doyle’s hands.”
This case was tried by the court without the inter-vention of a jury, and we shall pay but little regard to the action of the court in giving of refusing declarations '-of law except in so far as they indicate the theory upon which the court tried the case. While the garnishment remained undisposed of the money due from' Doyle to
The court permitted the relator to testify to the •sums paid by him to his attorneys for defending against the attachment suit. The defendants objected to such testimony, for the reason, among others, that the relator ■could only recover what were reasonable attorney’s fees and not what he paid. The relator afterwards intro■duced evidence as to what were reasonable attorney’s fees for the services rendered by the relator’s attorneys in the attachment suit; and the defendants also intro
At the time of the institution of the attachment suit-the relator was a citizen of Missouri, but was temporarily residing in Barber county, Kansas, with his family, where for a time they lived in a tent, engaged, as it appears, in caring for and grazing cattle. The court permitted the relator to testify to the number of trips made by him from his temporary residence in Kansas to Missouri to attend to the attachment suit, and the amount expended by him in so doing. The defendants, upon this question, asked and the court refused to declare the law to be, “that if the court finds from the evidence that defendant at the time the suit was brought was a resident of Moniteau county, Missouri, and afterwards removed to Barber county, Kansas, he cannot recover traveling expenses from said Barber county in attending said cause.”
The action of the court in the respect last named was correct. The relator “was entitled to recover on the bond for any direct loss, damage, or expense produced or occasioned ” by reason of the attachment, of any process or proceeding in the suit, or by reason of' any judgment or process thereon.” State to use v. Beldsmeier et al., supra. This language is sufficiently comprehensive to include the sums expended by him in attending the attachment suit under the facts in this case. It is not necessary to consider the declaration of law as an abstract proposition of law. There was no-evidence to support or warrant it. No one testified upon this subject, so far as it appears from the abstract of the record, except the relator himself. He considered Missouri his home, at the time the attachment suit was begun, but was in fact then living in Kansas. The relator was entitled to recover the amount expended by him in attending the attachment suit under such facts.
It may be that the court should not have allowed the relator the entire amounts expended by him in going from Kansas to the place of trial, for the reason that.
We find no error in the record. The judgment is affirmed.