Bennett v. Southern Bank , 61 Mo. App. 297 ( 1895 )

Gill, J.

—In November, 1890, the defendant bank instituted an attachment suit against the plaintiff, Bennett; the other defendants herein were sureties on the attachment bond. Under said writ of attachment, Bennett’s real estate and personal property were levied on. In the December following, the bank dismissed its attachment against Bennett, and the property theretofore seized by the sheriff was released. This is an action brought on the attachment bond, wherein plaintiff had a verdict and judgment for $550, and defendants appealed. Other facts will be stated further on.

I. In the effort to reverse this judgment, two points are made, to wit: First, that the court erred in overruling defendants’ motion to strike out parts of the petition, and, second, that the court erroneously sustained a demurrer to the first count of the answer. We shall dispose of these in the order mentioned.

In the petition filed in this cause, after stating that the bank on November 7, 1890, began an. attachment suit against plaintiff, it was stated that, in the affidavit therefor, it was alleged that this plaintiff had concealed himself so that the ordinary process of law could not be served upon him, and that the debt sued for was fraudulently contracted on the part of the debtor, this plaintiff. And further on, in addition to the necessary allegations, it was further stated “that said writ of attachment was wrongfully sued out; that no just ground existed for causing the same to be issued.”

Defendants filed a motion, asking the court below to strike out these allegations in the petition, for the alleged reason that the truth of an affidavit for attachment can not be inquired into in a suit on the attachment bond. This motion was overruled, and this constitutes the first error complained of.

It is clear that the motion ought to have been sustained. The matter aimed at by the motion was immaterial and properly had no place in this action. That the attachment was wrongfully sued out was settled by the judgment in the attachment suit; and the truth or falsity of the attachment affidavit could not be tried in this action on the bond. Hayden v. Sample, 10 Mo. 215. But it does not follow that this judgment should be reversed for this error of the lower cou-rt. Said erroneous ruling was of no possible prejudice to the defendants. The effect of leaving these unnecessary allegations in the petition would at most impose additional burdens on plaintiff; and such as, in the nature of the case, he was not legally bound to assume. In this action he was under no obligation to disprove the allegations of the attachment affidavit.

II. In the-first count of defendants’ answer it was sought to bar this action by the plea of res adjudicata, based on the following facts alleged: In the year 1891, plaintiff sued these same defendants on this same cause of action, and in that proceeding the plaintiff filed three several petitions, each of which was, on demurrer, adjudged insufficient. And thereupon the court, on defendants’ motion, and ¿in pursuance of section 2068 of the practice act, entered a final judgment, and turned the plaintiff out of court. The trial court sustained plaintiff’s demurrer to this first count of the answer, and this ruling is now complained of.

The principle is well established, of course, that, where a matter has been once finally adjudicated the' parties to the action are for all time precluded from raising that question again. But it is equally as well settled that such former adjudication in order to be a bar, must have been on the merits. Wells v. Moore, 49 Mo. 229. 1 Freeman on Judgments' [4 Ed.], sec. 260. In the absence of a contrary ¿showing, we assume, as to the case in hand, that the former judgment on demurrer (now pleaded in bar) was on account of a petition defective in form or substance, while here we have a perfect petition. And in .such case the rule is quite universal, “that a judgment sustaining a demurrer to a demurrable complaint can not be successfully pleaded in bar to a subsequent action in which the complaint is perfect.” 1 Freeman on Judgments, sec. 267. In our opinion, then, the court properly sustained a demurrer to the first count of defendants’ answer.

Judgment affirmed.

All concur.