Gates v. Clavadetscher , 19 Mo. 125 ( 1853 )

Ryland, Judge,

delivered tbe opinion of tbe court.

1. The only point in this case calling for tbe opinion of tbe court, is in relation to tbe time of publication of tbe notice. Tbe statute of 1845, concerning attachments, is still in force ; tbe manner of giving notice, what tbe notice shall contain, tbe manner of giving publicity in some newspaper printed in this state, tbe last insertion to be not less than four weeks before tbe first day of tbe next term, &c.; all these things must still be adhered to in attachment cases. Why should eight weeks publication be required ? Why retain most of tbe provisions of the attachment law of 1845, set forth in sections 14, 15 and 16, in article 1, and yet reject the four weeks’ publication, and in lieu of this provision, take tbe publication required in tbe new general practice act of eight weeks ? Tbe practice act requires publication of notice to non-resident, absent or unknown defendants to be made for eight weeks successively, tbe last insertion to be four weeks before tbe commencement of tbe term, and it provides that suits may be brought by attachment, in the cases, and conducted in tbe manner authorized by statute in such cases, provided that the pleadings and procedure shall be, as near as may be, according to tbe provisions of this act, that is, the proceedings in the courts, so far as the mode is concerned. The practice act has had the tendency to increase suits and costs enough already among litigants, and this court is not disposed to increase the costs of giving notice in attachment suits, by doubling the length of the publication in a newspaper. We do not think the general practice law of 1849 was designed to affect the provisions in the attachment law of 1845, any further than to alter the pleadings. The plaintiff is to sue by petition, and the defendant to answer, and then the mode of carrying on the case before the courts is to be, as near as may be, in conformity to that act. This point is valid against the defendant below.

2. The second point is also for the plaintiff below. The' court is not required to find the facts, and preserve them by filing them in writing with the clerk, in cases where judgments by default have been rendered. It is only where an issue of facts has been referred to the court by the parties, that the facts must be found.

The judgment below is affirmed,

the other judges concurring.