State ex rel. Hirsch v. I. Silverstein & Co.

Ellison, J. This is an action for damages by an interpleader in an attachment suit before a justice of the peace on the attachment bond given in that suit. The judgment below *was for $11 in favor of plaintiff and she has sued out a writ of error, complaining of unfavorable instructions given by the court. AtrPiIi'pra«icae11:'3 ptfiu'ancTfumg ^°r:second 1. We are asked to dismiss the writ on the ground that the case was appealed in time to be returnable to the October, 1897, term of this court, but that' plaintiff did not file a transcript of the record here until the twenty-second day of January, 1898; and that on the twenty-fourth ¿ay of January, 1898, she dismissed the appeal and on the next day sued out a writ of error returnable to the March term, 1898, of this court. That said writ of error was dismissed by this court on account of plaintiff’s failure to comply with the rules of the court. That thereafter on the twenty-second day of August, 1898, the present writ of error was sued out. We are of the opinion that the writ ought not to be dismissed. When plaintiff failed to file a transcript of the record on her appeal for the October, 1897, term of this court, defendants had a right to bring up a certified copy of the judgment with the order granting the appeal, etc., and have it affirmed. But defendants did not exercise such right. Plaintiff afterwards filed her transcript of the record, dismissed her appeal and sued out a writ of error as she might legally do. She then failed to comply with the rules of court as to briefs, abstracts, etc., and the writ was dismissed. This did not preclude from taking out a new writ. The penalty upon her was payment of costs. The new writ of error was a new suit and may in this respect be [308] likened to the dismissal of a case in the trial court and beginning anew. J^urffdiltiSn“rts: taS1 property, 2. Defendants contend further that plaintiff could not rightfully maintain this suit and therefore the judgment below instead of being in her favor for the aforesaid small sum, should have been against her altogether. The ground of this contention is that a'justice of tke peace has no jurisdiction of an interplea where the property in dispute has been seized by the constable by a direct levy and seizure. That the justice only has jurisdiction of an interplea when the property has been held by garnishment in the hands of a garnishee. We do not consider the point well made. By the express terms of section 572, Revised Statutes 1889, an interplea may be filed for attached property in causes arising in the circuit court; and by the terms of section 604 of the same statute, ‘ ‘the provisions of law governing attachments in courts of record shall apply to attachments before justices of the peace so far as the same may not be inconsistent with the provisions which are specially applicable to the latter.” One of the provisions of law governing attachments in the circuit court is a right to interplead for the property attached. The justice’s jurisdiction has, by this, the express sanctum of the statute. Such is unquestionably the understanding of the bar, and such was undoubtedly the thought of the supreme court in Mills v. Thomson, 61 Mo. 415; and of this court in Engine Co. v. Glazier, 55 Mo. App. 95, though the point now made was not before the court and was not considered in either of those cases. In the former Judge Sherwood, by inadvertence, makes the misstatement that the same section of the statute which allows an interplea before the circuit court allows it before a justice of the peace. He refers to section 52, page 192, Wagner’s Statute, but [309] that statute is identical with the present statute. But the opinion in that case is necessarily based on the assumption that the justice had jurisdiction. We can not discover any relevancy to the question in sections 5226, 5256 and 5258 of the statute relating’ to interpleas in garnishment proceedings. Arfcefverfic?Vc‘ S“t:0evidem:e. 3. It is next contended by defendant that plaintiff ought not to have recovered at all, on the ground that there is no judgment on her interplea in the circuit court where it had been taken on appeal, awarding her the property. The records show the trial, a verdict for the interpleader and a judgment as follows: “It is therefore by the court considered that the plaintiff take nothing by his writ, that the defendant go thereof without day, and recover of plaintiff his costs in this behalf expended, and have thereof execution.” From this it appears that there was no judgment rendered in favor of this plaintiff as the interpleader in that cause. The verdict in her favor was not a judgment for her. She seems to have been omitted in entering the judgment and we can not substitute a verdict merely for both a verdict and judgment. Thomas v. Irvin, 90 Ind. 557; Vineyard v. Barnes, 124 Ill. 346. But it appears from the record that the foregoing verdict and judgment was received in evidence without objection from defendants. No point was made on it when offered, or afterwards. It ought not to be allowed now. AVterjieader:: neys’l?ees,attor~ 4. The court below took the view that plaintiff could not recover attorneys’ fees in prosecuting her interplea. This was ruled adversely to such view in State ex rel. v. Lumber Co., 70 Mo. App. 663. She should be permitted to recover all damages which necessarily resulted by reason of the attachment. She should, as a [310] successful interpleader, have a measure of damage at least as broad as that allowed a defendant who defeats an attachment. The judgment will be reversed and caused remanded. All concur.