Whitman Agricultural Ass'n v. National Railway, Electric & Industrial Ass'n

45 Mo. App. 90 | Mo. Ct. App. | 1891

Ellison, J.

— This was an action brought by plaintiff to recover $195, the purchase price of three turnstiles, alleged to halve been bought by defendant of plaintiff in August, 1889. Plaintiff sued out a writ of attachment, on the ground stated in the affidavit, and also in the petition, that the turnstiles were to be paid for on •delivery, and that defendant failed to pay for same. The attachment bond was signed by the attorneys of record for plaintiff, in plaintiff’s name, and was not indorsed as approved by the clerk of the court. The sheriff, under the writ, attached the turnstiles, and about four hundred and fifty bushels of corn found on defendant's premises. Plaintiff, in its petition, prayed for judgment for $195, and that it be declared a special lien against the turnstiles for the purchase price thereof. Defendant filed a motion to quash the writ of attachment, alleging that no bond had been filed by the plaintiff. The motion being overruled, the court allowed the plaintiff to file a new bond in ten days, which was done, against objections of defendant. Afterward, defendant filed a plea in abatement, denying the grounds of attachment stated in plaintiff’s affidavit. The plea in abatement coming on for a trial before a jury, a verdict on the plea was found for plaintiff, whereupon, the defendant not appearing to the case upon the merits, the court proceeded to try the case, and gave judgment in favor of plaintiff for the sum prayed for by plaintiff together with interest and costs. The judgment was a general one.

Defendant filed a motion for a new trial, alleging the following reasons therefor, among others: That the court erred in overruling defendant’s motion to quash the writ, and because the judgment was a general one. Defendant also filed a supplemental motion for a new trial, alleging a discovery of new evidence since the time of trial.

The only objection to the original bond is that it was signed for the principal by unauthorized agents, and that it was not approved by the clerk. The bond, though signed by the attorneys, who had no authority from the principals, was signed by sureties. It was not a nullity, and it was proper to permit another to be filed in its stead. McDonald v. Fist, 53 Mo. 343. It seems the clerk did not indorse on the bond his approval thereof. He did, however, in fact, receive the bond and issue the writ of attachment. The indorsement of approval is but evidence of approval. It is not the only evidence. If the clerk receives the bond and issues the writ, it amounts to an approval as far as concerns defendant. Drake on Attachments, sec. 120. When, upon a sale, nothing is said as to credit and no time be stipulated for, it is a cash sale. Southwestern Freight Co. v. Standard, 44 Mo. 71. The law is that, nothing to the contrary appearing, the presumption is that a cash sale was intended

Complaint is made that a general judgment was rendered against defendant. This was proper, as defendant had been served with process. The fact that, after appearing to the plea in abatement, they made default as to the merits does not alter the case. The court had jurisdiction over the person, which was all that was necessary to authorize a judgment in personam.'

Other points suggested are not deemed as well made. -Nothing is shown why the judgment should be reversed, and it is affirmed.

All concur.