Tevis v. Hughes

| Mo. | Jan 15, 1847

Scott, J.,

delivered the opinion of the Court.

The plaintiffs in error commenced proceedings against the defendant by attachment, for the recovery of a sum of money. On the return, of the writ, the defendant-appeared and moved to quash the writ, for the reasons that the bond required by law before the issuance of a writ of attachment was not in pursuance of the statute; that no attachment bond was filed; that the bond filed was void. The bond, it seems, was executed by two of the plaintiffs, Tevis & Scott, as principals, whose names are inserted in the obligatory part of it, with a blank for the names of the sureties: the bond was executed by the two principals, and by Hotsenpiller & Agee, in their partnership name.

The Court sustained the motion, and dismissed the suit.

The statute regulating attachments, enacts that if the bond required bylaw, to be filed before the issuance of an attachment, shall be deemed insufficient, the Court, after notice to the opposite party, shall, by order, direct another bond to be executed within a limited time, and upon a non-compliance with this order, by the plaintiff, his suit shall be dismissed.

These provisions of the law were not complied with, but the Court, assuming the bond to be a nullity, treated it as such, and dismissed the suit, as though it had been instituted without filing any bond.

The bond for an attachment was first required by the act of February 6th, 1887. That act made no provision for sustaining the proceedings in the event of the bond being judged insufficient by the Court in which they originated; the consequence was, that many attachments were dismissed owing to the carelessness of parties and others in preparing and executing bonds. To correct this evil, the act of February 13th, 1839, was enacted, which contained the provisions above referred to respecting insufficient attachment bonds; this is a remedial statute, and should be construed liberally. It cannot, with any propriety, be said that the bond filed upon the commencement of the proceedings in this cause, is a nullity. It was certainly the bond of the two principals, who executed it. As to the execution of it, in a partnership name, it was at least the bond of that partner who executed it, if the assent of the other could not be shown; although the omission of the name of the surety in the obligatory part of the bond, (the names, of the other obligors having been inserted,) may have affected his responsibility, yet there was such a bond in the meaning of the act as should have induced the Court to make an order directing another bond to be filed. 11 Ohio R. 420.

The other Judges concurring, the judgment will be reversed, and the cause remanded. <