State ex rel. Gilbert v. Eldridge
Supreme Court of Missouri
Appeal from Dade Circuit Court.-—Hon. J. D. Parkinson Judge. 1. The damages in a suit on an attachment bond are always unliquidated; and, if the ordinary rule is to govern, the statute would be rendered nugatory. 2. The petition fails to allege that the bond, or a certified copy thereof is filed, and does not allege any excuse for failing so to do, and no testimony can be introduced under it.
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Appeal from Dade Circuit Court.-—Hon. J. D. Parkinson Judge. 1. The damages in a suit on an attachment bond are always unliquidated; and, if the ordinary rule is to govern, the statute would be rendered nugatory. 2. The petition fails to allege that the bond, or a certified copy thereof is filed, and does not allege any excuse for failing so to do, and no testimony can be introduced under it. Bothwell v. Morgan, ST Mo. 107. 3. The instrument filed with the petition and offered in evidence purports to be a copy of the attachment bond, but is not certified. The statute provides that certified…
1Opinion of the CourtSherwood, C. J.
Suit on attachment bond. Gilbert, to whose use the suit was brought, recovered judgment, and the defendants appeal, assigning divers errors for its reversal.
*586 i Squidated^aml a£es-
*585I. There was no error committed in striking out that portion of the answer relating to a breach of the covenants *586of a lease entered into between defendants and Gilbert, to whose use this suit is brought. Unliquidated damages are not the subject of seúoff, as this court has frequently held. (Brake v. Corning, 19 Mo. 125 and cas. cit.) The right of set-off did not exist at common law, but is purely the creature of…
2Cases cited4 opinions
- Hannibal & St. Joseph Railroad v. KnudsonSupreme Court of Missouri · 1876
- Burdsal v. DaviesSupreme Court of Missouri · 1874
- Rothwell v. MorganSupreme Court of Missouri · 1865
- Brake v. CorningSupreme Court of Missouri · 1853
3Cited by7 opinions
- Hall v. Wilder Manufacturing Co.Supreme Court of Missouri · 1927
- Caldwell v. RyanSupreme Court of Missouri · 1908
- Ex parte GraySupreme Court of Missouri · 1882
- State ex rel. Malin v. MerriamSupreme Court of Missouri · 1901
- Watkins v. Brotherhood of American YeomenMissouri Court of Appeals · 1915
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