Mackey v. Hyatt

Ellison, J. This action is on account, and was begun by attachment. The account is as follows: “September25, merchandise...........$ 46 92 September 25, merchandise............ 48 25 October 8, merchandise.......... 384 90 ■October 3, merchandise................ 49 08 •October 8, merchandise................ 14 40 November 2, merchandise............. 18 25 November 14, merchandise............ 27 24 November 14, merchandise............. 17 60 “Total........................... $606 44 “credit. “January 31, by cash........................$100 00 “ Balance...............................$506 44 ” The attachment was based on three statutory causes. The two first were found for defendant on the plea in ■abatement; the third, being that the debt sued for was fraudulently contracted on the part of the debtor, was found for plaintiff. The case shows that the first two items of the account were not fraudulently contracted ; that the balance was contracted in fraud. Defendant brings the case here, and complains that, inasmuch as a portion of the account was not fraudulently contracted, the attachment proceedings, depending upon that ground, must fail. Counsel have not [446] cited us to a case in this state upon the question presented, and we are compelled to dispose of it without such aid. After consideration, we have concluded that the attachment should be sustained, for the cause alleged, notwithstanding a portion of the account was contracted in good faith. The learned counsel for appellant confidently rely upon the cases of Estlow v. Hanna, 75 Mich. 219, and Meyer v. Zingre, 18 Neb. 458. But, in our view, those cases do not sustain the position taken in argument. The case of Estlow v. Hanna was an attachment in an action based on three several promissory notes. The facts' were these: Plaintiff was defendant’s surety on three notes, given.to different parties, and he afterwards had to pay each, of these, notes. He thereupon brought the attachment. It was found by the trial court that plaintiff was fraudulently induced to sign only one of the notes, and the-court held the attachment, for that reason, could not be sustained. The case of Meyer v. Zingre was an attachment on two several debts, one a note, the other an account. The account only was fraudulently contracted, and the court held the attachment was not sustainable. It will be seen that each of these cases was based upon separate and distinct debts, representing separate causes of action, and arising from separate and distinct contracts, while the case at bar is an action for but one debt, and representing but one contract and one cause of action. It is an account consisting of many items, it is true, but it is, nevertheless, a debt in solido and not severable. It is a running account for merchandise, and an action on any part of it would bar an action for the balance. It could not be split up into suits on each item. It is but one debt which is the subject of but one action, and it was either contracted in fraud or in good faith. Ninety-five dollars and seventeen cents was not shown to have been contracted in fraud, while five-hundred and eleven dollars and twenty-seven cents was shown to have been fraudulently contracted. That is, [447] in the purchase of the first two items in the account, the fraud had not begun. Now, when we admit that a part of an indivisible debt was contracted in fraud, we must say the entire debt was ; that is to say, the fraud practiced characterizes the whole debt. The practical effect of any other view, in a case of this sort, would deprive the creditor of a right, as he could not bring two actions ; he would be compelled either to renounce a part of his claim or forego his right of attachment. So that if his account should be one thousand and fifty dollars, one thousand of which was fraudulently contracted, he must, perhaps, lose the whole for want of an attachment, or renounce the fifty dollars. It may, however, be said that the illustration can be reversed, and that where, of the sum named, in the view here taken, only fifty dollars was fraudulently contracted, the debtor is subjected to an attachment for one thousand and fifty dollars. But it must be borne in mind that this is the debtor’s own act that brings upon him this hardship, a hardship which he can avoid by abstaining from the fraud. II. The affidavit for attachment is defective. It is not made by the plaintiff, nor does it appear upon its face, that it is made by “ some person for him.” R. S. 1889, sec. 526. It should properly appear upon the face of the affidavit that it is made for the plaintiff, but it is held that if it does not so appear it will suffice if that fact appears upon the record somewhere. Gilkeson v. Knight, 71 Mo. 404; Johnson v. Gilkeson, 81 Mo. 55 ; Irwin v. Evans, 92 Mo. 472. This does not, in our opinion, mean that it may be made to appear by testimony heard at the trial. Notwithstanding such testimony is embodied in a bill of exceptions and thus made a part of the record for a review by an appellate court, it is not a part of the record proper. In each of the cases just cited, it is shown by the record proper, as distinguished from the proceedings at the trial, that the affidavit was properly made. We shall, therefore, rule [448] the affidavit insufficient, notwithstanding proof at the trial that'the affiant was plaintiff’s agent and transacted the business over which the action rose. Since, however, an attachment affidavit can be amended in this state the plaintiff will be granted leave by amendment to correct or perfect the affidavit. Claflin v. Hoover, 20 Mo. App. 314. We have considered defendant’s third point of complaint, but think the principle he invokes not applicable to the undisputed facts in the case. Since considering the foregoing we note the fact that there is no such judgment in the cause that defendant can appeal from. The judgment is only on the plea in abatement — not on the merits. When a defendant is defeated on a plea in abatement he should file exceptions and the cause should proceed to trial on the merits ; after which, if defendant is again defeated, he may appeal the whole case, including the plea in the abatement. Metzenberger v. Keal, 31 Mo. App. 130 ; R. S. 1889, sec. 562. That further litigation on this matter may be avoided we promulgate the foregoing, notwithstanding-we dismiss the appeal. All concur.