Nolte v. Farrelly , 34 Mo. App. 671 ( 1889 )

Thompson, J.,

delivered the opinion of the court.

This action was commenced before a justice of the peace by attachment, to collect a debt due by a promissory note. The defendant pleaded in abatement of the attachment, and, on trial before the justice, the attachment was sustained and a judgment was also rendered against the defendant on the merits. From this judgment the defendant appealed to the circuit court, making the usual affidavit and filing the usual bond for appeal. On trial anew in the circuit court, no evidence was offered by the plaintiff in support of the attachment, and judgment was therefore rendered by the court‘for the defendant on his plea in abatement. Thereupon there was a trial on the merits which resulted in a judgment for the plaintiff. The court entered up this judgment against the defendant, and also against his sureties in the appeal bond, as required by section 3062, Revised Statutes. From this judgment the defendant prosecutes the present appeal to this court, assigning for error that, the attachment having been dissolved., it was not competent for the court to enter up judgment on the merits against the plaintiff and the sureties in his appeal bond. The theory of defendant is that the appeal which was prósecuted by the defendants was prosecuted from so much of the judgment of the justice .as sustained the attachment, and that, after the attachment was dissolved in the circu it court, that court erred in rendering j udgment against the sureties on the appeal bond. His argument is that, w hen the attachment was ■dissolved in the circuit court, the sureties stood released from any obligation, and the case then stood on the ■docket of the circuit court as though it has been regularly commenced by summons in the circuit court. In this state the defendant cannot appeal from judgments on pleas in abatement in attachment suits until there has been a final judgment on the merits. Jones v. Evans, 80 Mo. 565; R. S., sec. 439. The defendant ■could therefore only appeal from the judgment which the justice rendered, which was an entire thing, embracing a judgment against him on the merits and also a special judgment against the property which had been impounded by the attachment; and this was the only appeal which he purported or attempted to take. Prior ■to the act of 1885 (Laws of 1885, p. 187), it was held ■by our supreme court that a defendant might appeal from a justice to the circuit court for the special purpose ■of securing an abatement of the action for want of jurisdiction, and might, in the circuit court, demonstrate by motion the special purpose for which he prosecuted his appeal. Blunt v. Railroad, 55 Mo. 157; Fare v. Gunter, 82 Mo. 522. But even supposing that this principle could be extended to such a case as the present, so as to allow a defendant appealing from a justice to appear in the circuit court and demonstrate by motion that he appealed only for the purpose of resisting the attachment, yet no such motion was made by the defendant in the circuit court in this case.

The assignment of error cannot be sustained upon any principle with which we are acquainted and the judgment is accordingly affirmed.

All the judges concur.