7 Mo. 52 | Mo. | 1841
Opinion of the Court by
From the record of this case it is difficult, perhaps impos-' sible, to make out any plain history thereof: but 'the following seems to be agreed on by the counsel of each party : Weiseneeker instituted a suit against Kepler by attachment, and took possession, under the authority of the writ of attachment, of certain property. Stine & Smith interpleaded, claiming the property attached. Issue was joined, and the cause submitted to a jury upon evidence; the jury found for the interpleaders Stine & Smith. The justice of the peace before whom the cause was pending, gave judgment accordingly, and Weiseneeker appealed to the circuit court. There the jury found the property attached to be the property of Keplér, the defendant in the action instituted by Weiseneeker: that is to say, they found against the claim of Stine & Smith, the interpleaders. Kepler, the defendant in the action, does not' appear to have been found by the officer.
Stine & Smith, interpleaders, then moved in arrest of judgment, assigning for reason,
1st. Because there is no cause of action shown by the papers in the cause.
2d. Because the justice granted the appeal upon a collateral branch of the case.
The record of this case as sent up from the circuit court, begins thus:
Peter Weisenecker, ) vs. > William Kepler. )
Assumpsit on account of $32 62 Attachment returned, Oct 10th, 1838. Executed by attaching the property, &c., and-defendant not found, and on this 20th day of October, 1838, the plaintiff is ordered to causé notice to be set up according to law, notifying the defendant to appear and plead to the action at the next law day of the justice, &c., and now on this thirtieth day of October, 1838, Nicholas Stine & Nicholas Smith come before the justice and asked leave to interplead, saying the property is theirs, <fcc. Then follows the plea and process to bring in ajury to try the right of property, their verdict, &c. But there is found in the record no account of the commencement of the action by Weisenecker. This is wrong. It pught to have appeared on the transcript sent up by the justice to the circuit court, that a suit was regularly commenced by Weisenecker aga'nst Kepler, and that it was by attachment; for this purpose a copy of the summons, attachment, and whatever proceedings were there had might have been transcribed, to s[low that the interpleaders, Stine & Smith, were before the - .. . .. , , m, conformably to the provisions of the statute, lhe objection of the counsel of Stine & Smith, the interplead-ers, that the appeal was granted upon a collateral branch of the case, and before any final judgment in the principal cause, seems to be without foundation. For the judgment' was final as to the claim of the interpleaders, and divested them of the contested property, and therefore it was but just that the interpleaders should have their appeal instantly. But because the appellant did not,, by the transcript by him brought up from the- justices’ court, show a case of a suit regularly commenced by Weisenecker against Kepler, in which the appellants, Stine & Smith, were interpleaders, the judgment of the circuit court ought, in my opinion, to be reversed, and it is accordingly reversed.
