Daniel v. Atkins , 1896 Mo. App. LEXIS 66 ( 1896 )

Bond, J.

This is an attachment suit for rent, brought before a justice of the peace for Salt River-township, in Audrain county, on the twenty-seventh of November, 1894. Plaintiff had judgment in the justice’s court, and on appeal in the circuit court, wherefore defendant appealed to this court, and assigns as error, the failure of the record to show jurisdictional facts.

In support of this contention it is urged that the-return of the constable, who levied the writ of attachment, does not show either that the property levied upon was located, or that the defendant resided, in the township of the justice issuing the writ, or any adjoining township. It is argued that, unless one. or the other of these alternatives existed, no jurisdiction was acquired by the justice. Revised Statutes of 1889, section 6127. Neither the residence of the defendant, nor the location of the attached property, is made to appear from any part of the proceedings set out in this record. Except by presumption it. can not, therefore, he held that the requirements of the statute, supra, were complied with.

• The trial court rendered judgment on the merits of the case in favor of plaintiff for one cent, and ordered execution therefor against the attached property, the issue on the plea in abatement having been decided for plaintiff.

Whether the jurisdictional defects urged by appellant as to the attachment proceedings are well assigned, all the members of the court are not agreed. But we are all agreed that, even if such objections can be now made, it would be our duty to remand the cause to give plaintiff an opportunity to amend, since it is now held by the supreme court that amendments may be made, upon an appeal in the circuit court, as to jurisdictional defects in proceedings begun before justices. Dowdy v. Wamble, 110 Mo. 280.

The judgment on the merits being only for one cent, and the record showing a state of facts from which all are satisfied that plaintiff would recover on a second trial, we are not warranted in remanding the cause for that purpose, but will affirm the present judgm'ent. It is so ordered.

All the judges concur.