Graham v. Bradbury

J. & J. Graham v. Bradbury & Schaeffer

Graham v. Bradbury, 7 Mo. 281 (1841)

Court: Supreme Court of Missouri · State Highest Courts
Decided: September 15, 1841
Citations: 7 Mo. 281

Headnotes

1. An attachment cannot be quashed on the ground that the facts do not authorise the issuing of an attachment. If the truth of the facts, on which it is issued is controverted, it must be put in issue by a plea in the nature of a plea in abatement. 2. The remedy by attachment is not confined to resident creditors. An attachment cannot the^ground°n that the facts rise the issu-tachmen™. "if th*5 f™/1* whieh it is i” troverte<d°n"it must be ’put pieaSUin bthe nature of a plea in abate- reme. N by attachment is not confined to ditors0* cre*

Summary

Error to the St. Louis Circuit Court The reasons assigned by the defendant for quashing the attachment are: 1st. That the claims sued on are debts contracted out of this State, and the affidavit does not show that the debtors, or either of them, absconded or secretly removed their property or effects to this State with intent to defraud, defeat, hinder, or delay their creditors, as required by the statute. 2d. That the plaintiffs and defendants are both non-residents of the state of Missouri, and are both residents of the city of Cincinnati, in the State of Ohio, and as such the affidavit is insufficient, in merely alleging the non-residence of the defendants, to support an attachment in this State. As to the first reason. The reason is insufficient to quash the attachment, because the ground for obtaining the attachment, laid in the affidavit, is in itself sufficient, without requiring the plaintiffs to set forth also another ground, which the law recognizes as one upon which an attachment may properly issue. The plaintiffs in their affidavit allege the non-residence of the defendants, which is enough for an attachment. to issue. The defendants seek to quash the attachment because the plaintiffs do not either go further, and swear that the defendants absconded from Ohio, or take a grpund different from that which in the affidavit they saw fit to assume. This proposition by itself would be absurd, but it goes upon the assumption that the debts wei'e contracted out of this State, of which the bill of exceptions shows there was no evidence. As to the second reason. Here also it is assumed that the plaintiffs are not residents of this State, and therefore cannot sustain an action by attachment against non-residents. There was no evidence of these facts before the court, and if there was, it is no reason why the attachmentshouid be quashed, as one non-resident may sue another by attachment ™ this State. Posey v. Buckner, 3 Mo. R. 604.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

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*282 Opinion of the Court by Scott, Judge.

The plaintiffs in error sued the defendants in error by attachment, in October, 1839. The attachment was sued out on an affidavit, in which it was alleged that the defendants were not residents of, nor residing in this State. The affidavit was made in the State of Ohio, and some nine or ten days before the writ issued. The bond for the attachment was executed in this State, and the note sued on is dated Cincinnati.

On the return of the writ the defendants moved the court to quash it, because the claims sued on were debts contracted out of the State, and the affidavit does not show that the debtors, or either of them absconded, or secretly removed their property or effects to this State, with intent to defraud, defeat, hinder, or delay their creditors; that the plaintiffs and defendants are both non-residents of this State, and are residents of the city of Cincinnati, in the State of Ohio. The court below quashed the attachment, and the cause is brought here by writ of error. The statute of 1839, concerning attachments, prescribes the manner in which defendants shall defeat attachments, when the facts on which they are sued out are false.

An attachment may be quashed when it is issued on such a state of facts as does not authorise the issuing of the writ, It is not pretended that the affidavit in this case is not suffi-cjent to SUpport the attachment. If the truth of the facts on which it is issued is controverted, it must be put in issue by a plea the nature of a plea in abatement. Section 11, °fact

The remedy by attachment is not confined to resident cre-^ors. If the objection to this proceeding could have been taken in the mode adopted by the defendants, yet there was no ev^ence that the plaintiffs were non-residents. The facts *283 that the affidavit in Ohio, and the note was dated at Cincinnati, are not sufficient evidence to show that the plaintiffs are non-residents. As to the objection that there was an interval of nine or ten days betwixt the making of the davit and the issuing of the writ, the state of the facts might have changed during the interval. The party must take advantage of it by plea; the plea would have put in issue the truth of the affidavit at the time of the issuing of the writ. Some time must necessarily in many cases intervene be-i . . - . ' , . . . .. tween the making oi the affidavit and the issuing of the writ. Judgment reversed.

reme. N by attachment is not confined to ditors0* cre*

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

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Relies on it most ⓘ

Baisley v. Baisley21 S.W. 29 (Mo. 1893)
State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge56 S.W.2d 28 (Mo. 1932)
Kesler v. Lapham33 S.E. 289 (W. Va. 1899)
Adams v. Lockwood, Englehart & Co.30 Kan. 373 (1883)
Avery v. Good21 S.W. 815 (Mo. 1893)
Trinidad Asphalt Manufacturing Co. v. Standard Oil Co.258 S.W. 64 (Mo. Ct. App. 1924)

Most recent

C. S. Foreman Co. v. H. B. Zachry Co.122 F. Supp. 859 (W.D. Mo. 1954)
State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge56 S.W.2d 28 (Mo. 1932)
Trinidad Asphalt Manufacturing Co. v. Standard Oil Co.258 S.W. 64 (Mo. Ct. App. 1924)
Himmelberger-Harrison Lumber Co. v. Keener117 S.W. 42 (Mo. 1909)
Rosenthal v. Windensohler91 S.W. 432 (Mo. Ct. App. 1905)
Kesler v. Lapham33 S.E. 289 (W. Va. 1899)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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