Frederick v. Tiffin

Ellison, J. Plaintiff filed with the justice of the peace a statement in replevin, but so defective, in omitting to state that the property had not been seized under any process, execution or attachment, against the property of plaintiff, that it gave the justice no jurisdiction and he should not have issued process thereon. Gist [446] v. Loring, 60 Mo. 487; Berry v. Kaufman, 70 Mo. 187; Madkins v. Trice, 65 Mo. 656. The justice did, however, issue on the statement. J. W. DeGeer and John Renfrew were plaintiff’s sureties on the replevin bond and are the appellants in this cause. The bond is .-as' follows: “Bond — We undertake and are bound to the defendant, John W. Tiffin, in the sum of one hundred and seventy dollars for the prosecution of the action in the above entitled cause ; for the return to the defendant Tiffin •of the mare ordered to be delivered by the defendant to the plaintiff Frederick if return thereof be adjudged, and for the payment to him, the said defendant, of such sum as may, for any cause growing out of the order in the •cause be recovered against the plaintiff and for the payment of all costs of suit. George S. Frederick (L. S.), J. W. DeGeer (L. S.), John Renfrew (L. S.) ” After trial before the justice, the cause was appealed to the circuit court, where defendant filed a motion to .dismiss the cause, for the reason that the statement was imperfect and gave the justice no jurisdiction, and that he should not have issued process thereof. The court sustained this motion, dismissed the cause and proceeded to render judgment summarily against the securities, DeGeer and Renfrew, under section 2903, Revised .Statutes. The replevin bond is not in the form required by the ■statute, though we will not say it is so far deficient, in this respect, as not to be a good statutory bond, if it was founded upon the proper statutory proceeding authorizing it to be executed. The original statement gave the justice no jurisdiction of the case, and for this reason the circuit' court dismissed it. The justice having no jurisdiction over the •subject matter, the process in the cause was void. The bond authorized by the statute, and on which summary judgment may be had against the sureties, is, of course, -a bond given in proceeding legally conducted under the [447] statute and by its authority. We think there was no authority to enter the summary judgment under the statute against these appellants, and that their appeal is well taken". We see no reason why they should not be held liable, however, in a direct action on the bond for the purpose. We consider the cause of State v. Stark a (75 Mo. 666), a direct authority in support of such an action. The judgment is reversed and'the cause is remanded. The other judges concur.