Brown v. Hoffmeister

71 Mo. 411 | Mo. | 1880

Sherwood, C. J.

The question presented by the record is whether the defendant, an officer, was justifiable in making a levy on and sale of the books of plaintiff, he being a lawyer. Whether the officer could justify under the writ, would, for the most part, depend upon whether the property seized and sold was, under the law, exempt. The 9th section of the act respecting executions, provides that certain property, when owned by the “head of a family,” shall be exempt from execution. 1 Wag. Stat., p. 603, § 9. And the 11th subdivision of that section gives all lawyers the “privilege of selecting such books as may be necessary to their profession, in the place of other property herein allowed, at their option.”

We do not agree with counsel for plaintiff that it stands admitted by the pleadings “ that said books are, and were necessary to plaintiff, in his profession as a lawyer,” or that plaintiff was the head of a family, since the open-' ing paragraph of defendant’s answer contains a general denial of the averments of the petition ; and this is sufficient under the amendatory statute of 1875. R. S. 1879, § 3521. So that, as there was no evidence inti’oduced that the plaintiff was “ the head of a family,” and as that averment of the petition was controverted by the answer, it follows that plaintiff has failed to show himself entitled to any exemption, and consequently, to any right of action against the officer, and the judgment should, therefore, be affirmed.

1. value OF books holJexkmpt fboji execution. But waiving such merely technical considerations, we do not think the plaintiff hag shown himself entitled to a recovery upon the merits. Our view of the 9th section, supra, is, that the construction of ^ lith subdivision, contended for by the plaintiff, cannot prevail. By providing that a lawyer, the head of a family, might have the privilege of selecting such books as should be necessary to his profession, in the place of other property, the legislature certainly never intended to establish a rule so greatly lacking in uniformity, as would limit the exemption in the majority of cases to a comparatively small sum, but in the case of a lawyer would allow him to select as exempt, a library, without regard to its value, and then make him the “sole judge” of what books were “ necessary.” "We think it afar more reasonable construction of the statute to hold that, while a lawyer may select such books as may be necessary to his profession, yet as such books are to be selected “ in the place of other property,” which the same section previously exempts, the books should not exceed in value “ other property” in lieu of which the books may be selected ; in short, that the mere option of the debtor should not enlarge his exemption under the law.

So far as concerns the instructions, they were, in our opinion, far more favorable to the plaintiff than he was strictly entitled to ; and the fifth instruction given at his instance, was directly at variance with our views heretofore expressed. And we find no error in refusing the other instructions asked by plaintiff.

2--: selection, The first instruction was properly refused, because the evidence showed that plaintiff refused to select such books as were necessary, but claimed his whole library, worth a large sum, as well as all his other property, as exempt from execution. This was not such a selection as the law required him to make.

4. duty of officer dLtorofTexem^ TI0N‘ There was no necessity for the officer to go through the barren ceremony of apprising plaintiff of his rights. His letter to the officer, as well as the testimony adduced, showed that plaintiff himself was sufficiently aware of his rights in the premises. The law does not require the doing of a nugatory act. Holding these views, we affirm the judgment.

All concur.