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Donovan v. Gibbs.

pearance and filing his answer to the merits. (4) Section 2342 provides that when an attachment shall be dissolved, all proceedings touching the property and effects attached shall be vacated. This section certainly relates to a dissolution as provided in section 2298, although enacted prior to the amended section. This section certainly contemplates and presupposes that some action would be taken by the court ordering and directing that the attachment be dissolved. Such a construction as is contended for by the appellant on section 2298 would make the attaching officer the absolute judge as to whether he should hold or release attached property.

BLAIR, J.-This is a suit under section 2535, Revised Statutes 1909, to adjudge and quiet title to lot two of the northwest quarter and the north half of lot two of the southwest quarter of section 31, township 35 north, of range 5 west, in Dent County. The Dent Circuit Court rendered judgment for defendant, and this appeal followed. B. P. Vickery is the agreed common source of title. Appellant claims through mesne conveyances from B. P. Vickery, having obtained a obtained a deed in September, 1909. Respondent claims title under deed from Stephens and Horsman, whose title depended upon the validity of a sale under judgment in a suit by attachment they began against B. P. Vickery November 5, 1908. The ground of attachment was Vickery's nonresidence. No attachment bond was given. Service was had by publication. On April 21, 1909, Vickery, appearing solely to question the jurisdiction, filed a motion in the cause. On April 22, 1909, alias summons was served in Dent County on Vickery, who was temporarily there. The cause was continued and was heard at the next term of court. On November 29, 1909, Vickery filed a general denial by way of answer, no ruling having

Donovan v. Gibb.

been had or asked on his plea to the jurisdiction, and no leave to file answer having been asked or given so far as the record shows. On November 30, 1909, the court rendered judgment in the attachment proceedings, reciting: "Now on this day this cause coming on to be heard, the judge of this court having previously heard the evidence of witnesses and the argument of counsel, and having taken the case under advisement" (italics ours) "finds the issues for the plaintiffs in the sum of two hundred dollars." Then follows an ordinary judgment by attachment declaring a lien upon the land attached in that suit and involved in this. Vickery called neither his plea nor his answer to the attention of the court in that case, nor did he move to dissolve or ask dissolution of the attachment or vacation of the attachment proceedings. Neither did he appeal from the attachment judgment. Sale was regularly made under that judgment, and Stephens and Horsman purchased the land and took possession. Subsequently, for full price, they sold to defendant, who took possession and thereafter expended nearly two thousand dollars in money and labor improving the land, erecting a dwelling, barns, fences, digging wells, clearing, making a pond, etc. When attached the land was subject to a deed of trust for five hundred dollars which Stephens and Horsman paid and which sum appellant does not offer to repay. April 19, 1909, some months after the attachment suit was begun and sometime after service by publication was had, B. P. Vickery and wife executed a deed, recorded April 23, 1909, purporting to convey the attached property to Wm. B. Vickery, who lived in the same town in Illinois with B. P. Vickery. May 3, 1909, Wm. B. Vickery and wife conveyed to Anna B. Vickery, also of the same town. September 8, 1909, Anna B. Vickery and husband B. P. Vickery, who had then removed to South Bend, Indiana, in consideration of one dollar, conveyed to appellant, also of

Donovan v. Gibbs.

South Bend. Appellant then had knowledge of the pendency of the attachment suit. Neither appellant nor any one of the Vickerys testified in this case.

Appellant's sole contention is that the filing of Vickery's answer in the attachment suit on November 29, 1909, ipso facto, instantly dissolved the attachment and, as instantly, freed the attached land from the lien, and that his title under his deed of September 8, 1909, is, consequently, one in fee simple, unaffected by the sale in the attachment proceedings. This contention is grounded upon the proviso in section 2298, Revised Statutes 1909. That section authorizes attachments without bond against non-residents but provides that "when any writ of attachment has issued against a non-resident and the plaintiff has given no bond, the attachment shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case."

It is obvious the plea to the jurisdiction did not affect the attachment, since the statute makes an "answer to the merits of the case" a condition precedent to whatever relief the proviso affords one within its scope. Did the filing of the answer automatically dissolve the attachment?


1. In Brown v. McKown, 265 Mo. 1. c. 335 et seq., we recently had occasion to consider the effect of the proviso in section 2298, but what was said in that case was not directed to the point appellant now presents. The question here is whether the quoted language of the proviso means that the filing of an answer to the merits, in a case to which it applies, of itself dissolves the attachment without application to or action by the court and without any further step of any kind. The words to be construed are "shall be dissolved as of course." Had the Legislature intended to provide that upon the filing of an answer in such

By Answer.

Donovan v. Gibbs.


a case the attachment should, when answer was filed, thereby stand dissolved, and the attachment proceedings thereby stand vacated, we think it would have used words clearly stating that meaning. The language actually used ordinarily implies further action by the court or the party entitled to the benefit of such a provision. Black's Law Dictionary thus defines the words "of course:" "Any action or step taken in the course of judicial proceedings which will be allowed by the court upon mere application, without any inquiry or contest, or which may be effectually taken without even applying to the court for leave, is said to be 'of course. (Italics ours.) Bouvier's Law Dictionary defines the same words thus: "That which may be done in the course of legal proceedings without making any application to the court; that which is granted by the court, without further inquiry, upon its being asked." (Italics are ours.) In Yates v. People, 6 Johns. (N. Y.) 1. c. 359, it was held that the words "of course" mean "according to the course and practice of the court." This was said in discussing writs issuable of course. In Merchants' Bank v. Crysler, 67 Fed. 1. c. 390, in discussing motions "of course" in equity, the United States Circuit Court of Appeals for this circuit said such motions were those granted "without the court being called upon to investigate the truth of any allegation or suggestion upon which they are founded." In Stoddard v. Treadwell, 29 Cal. 281, it was held that a statute providing for costs following judgments "of course" meant "as a matter of right."

These authorities warrant the conclusion that the language of the proviso is not susceptible of the meaning now attributed to it by appellant. We hold that if in an attachment proceeding defendant desires the benefit of the proviso of section 2298, Revised Statutes 1909, it is incumbent upon him to move therefor. One effect of the dissolution of an attach

Donovan v. Gibbs.

ment is a right to a vacation of all proceedings "touching the property and effects attached, and the garnishee summoned" (Sec. 2342, R. S. 1909) and this also implies court action. That such attachment defendant is entitled, upon answering, to such dissolution of the attachment and vacation of proceedings and may secure it upon application does not sustain. the contention that the filing of the answer in itself works a dissolution and vacation; unless we disregard the principle laid down in the authorities cited.

II. We must presume the trial court acted in accordance with the law. Therefore, even if it could be conceded appellant's construction of the statute is


correct, yet the record shows the cause was taken under advisement sometime prior to the rendition of judgment on November 30, Cubmission. 1909. The record being silent, so far as appears here, as to the date on which the cause was taken under advisement, we can presume, in aid of the judgment, that it was under advisement when Vickery's answer was filed on November 29, 1909. Indulging this presumption, we are of the opinion that in such circumstances the filing of the answer without leave and without setting aside the submission could not render applicable the proviso of section 2298, even though it be construed as appellant desires. The judgment is affirmed. All concur. Bond, J., in paragraph two and the result.

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