Opinion
No. 28166.
December 18, 1951.
APPEAL FROM THE CITY OF ST. LOUIS CIRCUIT COURT, ROBERT L. ARONSON, J.
William A. Ratican, St. Louis, for appellants.
Samuel J. Goldenhersh, Goldenhersh Goldenhersh, Stanley M. Rosenblum, and John F. Long (per se), all of St. Louis, for respondents.
This is an action to recover the balance due on a loan. Plaintiffs alleged in their petition that they loaned defendants Long, Getz, Becker and Mitchell $3,500, taking as security therefor a chattel mortgage on a Chevrolet truck and two semi-trailers; that $2,500 remains unpaid on the loan; that the defendants above named transferred the mortgaged truck to defendant Park-Davis Truck Lines, Inc.; that the last named defendant has "cash money in the sum of approximately $300.00 due and payable" to the first named defendants; that Park-Davis Truck Lines, Inc. "are now about to so transfer, deposit or otherwise dispose of said funds, so as to deprive plaintiffs of their rights and interests to said fund by placing same beyond the reach of plaintiffs, whereby plaintiffs will be unjustly and wrongfully injured and damaged." Plaintiffs prayed judgment against all defendants in the sum of $2,500.
The following affidavit of one of the plaintiffs supported the petition: "This affiant states that the plaintiffs in the foregoing entitled cause has a just demand against the defendants therein mentioned, now due and payable, that the amount which this affiant believes the plaintiffs ought to recover, after allowing all just credits and setoffs is $2500.00 together with interest under the terms of the agreement, and this affiant has good reason to believe and does believe that defendants are about to convert the money in their hands in such a way as to be a fraud on plaintiffs."
After filing the petition plaintiffs applied for an attachment and summons of garnishment in aid of attachment, which was issued against defendant Park-Davis Truck Lines, Inc.
Thereafter on oral application of plaintiffs a writ of attachment in aid of summons issued for defendants "to attach moneys at the Cass Bank and Trust Company, St. Louis, Missouri." Acting thereunder the sheriff attached all debts due from the bank "to said defendant John F. Long et al.," and summoned the bank as garnishee.
Thereafter on September 20, 1950 defendant "Park-Davis, Inc." filed its separate "motion to dismiss" which on the same day was amended by interlineation and thereby made into a "motion to dismiss and quash attachment" as against Park-Davis Truck Lines, Inc., on the ground that "plaintiffs fail to plead facts sufficient upon which to base an attachment," and that "the petition on its face fails to plead facts sufficient to support any cause of action."
On the same day the court made this order: "Separate motion of Park-Davis, Inc. as amended by interlineation to quash attachment sustained."
On September 28, 1950 plaintiffs filed a "motion to amend their affidavit in aid of attachment, heretofore filed," in which plaintiffs moved the court to set aside its order of September 20, 1950 quashing the attachment, and to allow plaintiffs to amend the affidavit upon which the attachment was based.
Numerous pleadings were filed thereafter, but they need not to be catalogued in view of the necessary disposition of this case. Suffice it to say that the trial court, liberally construing the last described pleading as a motion for new trial, and designating it as a "motion to set aside order of 9/20/50 quashing attachment herein," overruled the same, whereupon plaintiffs perfected this appeal.
At the time the appeal was taken the cause had not been tried on the merits.
On this appeal plaintiffs set up eleven complaints in connection with the allowance of the amendment of the motion to dismiss filed by Park-Davis Truck Lines, Inc., and the conduct of the hearing which resulted in the order quashing the attachment, but we cannot, nor should we, review these assignments of error because this appeal is premature and must be dismissed.
The appeal is premature because it is neither taken from a final judgment, nor authorized by a special statute.
As early as 1823 it was ruled that a writ of error does not lie to reverse the order of a circuit court dissolving an attachment. Lane v. Fellows, 1 Mo. 353. In 1883 the Supreme Court ruled that an appeal will not lie from such an order, because it is not a final judgment. Jones v. Evans, 80 Mo. 565. Other cases announcing the same rule include Wirt v. Dinan, 41 Mo.App. 236; Tamblyn v. Chicago Lead Zinc Co., 161 Mo.App. 296, 143 S.W. 1095; Case v. Smith, 215 Mo.App. 621, loc. cit. 626, 257 S.W. 148.
It is elementary that a judgment to be final and appealable must dispose of all parties and all issues in the case. The order of September 20, 1950 quashing the attachment did not dispose of the entire case. It was not a final judgment disposing of all parties and all issues. On the contrary, it was simply a judgment on the motion to quash, leaving the main case standing as before — a suit to recover the balance claimed due on a loan, without the auxiliary attachment. So far as this record discloses defendants are still bound to undergo the rigors of trial on the merits below on the issues made by the pleadings in the main case. The order appealed from did not discharge them from the entire cause but was strictly limited to the quashing of the ancillary and auxiliary attachment proceedings.
The decisions cited follow the general rule that in the absence of a statute allowing the same there can be no appeal from an order in attachment proceedings until after judgment has been rendered in the main action. 2 Am.Jur. § 113, p. 916; 4 C.J.S., Appeal and Error, § 142, pp. 293, 294.
There is no statute permitting an appeal from an order quashing or dissolving an attachment. RSMo 1949, §§ 521.480 and 521.490 provide that attachments may be dissolved on motion at any time before final judgment in three cases, and that upon such dissolution the attachments and garnishee process "shall be vacated, and the suit shall proceed as if it had been commenced by summons only" but do not provide for appeal from the order dissolving the attachment.
The only special statutory provision for appeals from orders made in auxiliary attachment proceedings is to be found in RSMo 1949, §§ 521.410 and 521.420, which authorize appeal from an order sustaining or abating an attachment where defendant files a plea "in the nature of a plea in abatement" which puts in issue the truth of the facts alleged in the attachment affidavit. It is apparent, however, that plaintiffs cannot rely on these sections as the basis for their right to conduct this appeal. Instead of "putting in issue the truth of the facts alleged in the affidavit" by plea in abatement under § 521.410, supra, defendant Park-Davis Truck Lines, Inc., took the position in its motion to quash the attachment that, conceding the truth of plaintiffs' pleadings, insufficient facts were pleaded to support either a cause of action or an attachment.
The distinction between the plea in abatement mentioned in § 521.410 and the motion to quash mentioned in § 521.480 and the fact that the former does not authorize an appeal of an order made under the latter is pointed out in Writ v. Dinan, supra, 41 Mo.App. loc. cit. 242.
It follows that the order of September 20, 1950 was a nonappealable order and that the appeal is premature. The Commissioner therefore, recommends that the appeal be dismissed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The appeal is, accordingly, dismissed.
BENNICK, P. J., and ANDERSON and GREEN, JJ., concur.