Withers v. Rodgers

24 Mo. 340 | Mo. | 1857

RylaND, Judge,

delivered the opinion of the court.

This was a suit by attachment. The clerk issued the writ, but did not send it out attached to the petition, nor did the petition accompany the writ. The sheriff served the writ by reading it to the defendant, and also attached his property.

The defendant moved to quash the return and also to quash the writ. The plaintiff moved to amend his petition and affidavit. The court permitted the plaintiff to file his amended petition and affidavit, and then took up the defendant’s motions — to quash the return and to quash the writ — and sustained both motions, and also dismissed the plaintiff’s action, and ordered the property which had been attached to be restored to the defendant. The plaintiff excepted to these rulings of the court. He filed his motion to set aside the judgment dismissing his suit, and to reinstate his action; which being denied, he brings the case here by appeal.

There was no cause to dismiss the plaintiff’s action in the court below. It was the duty of the clerk to endorse the summons on the petition, or annex the summons to the petition or a copy of the petition. Every summons must be accompanied by the petition or a copy o£ it, and the service must be by reading the petition and writ to the defendant, or by delivering to the defendant, who shall be first summoned, a copy of the petition and writ, and to such as shall be subsequently summoned, a copy of the writ, or by leaving such copy at the usual place of abode of the defendant with some white person of his family above the age of fifteen years. There was no proper service of the writ in this case, because there had not been a copy of the petition accompanying it or the petition itself, and consequently the sheriff had not either read the petition or delivered a copy of it to defendant. Under this stage of the proceedings, the plaintiff could not have taken properly a judgment against the defendant. But after the defendant made his motion to quash the return, and to quash the writ, he was in court, and the court ought not to have dismissed the plaintiff’s suit.

It might have continued the cause until the next term without requiring the defendant to plead, and required the plaintiff to furnish the defendant a copy of his petition in order that he might be prepared to plead at next term; and had the court below stopped at the quashal of the return of the writ, and then required the plaintiff to continue his suit and have a copy of the petition served on the defendant in order that he might be prepared to plead at the next term, there would have been no just grounds of complaint. But the court did not properly dismiss the plaintiff’s action. The attachment was not properly served. This court will therefore reverse the judgment of the lower court in dismissing the plaintiff’s suit, remand the cause with directions to reinstate the action, and then let it proceed as an ordinary suit;

Judge Scott concurring herein.