99 Mo. App. 376 | Mo. Ct. App. | 1903
In an action by attachment brought February 21, 1899, by George M. Caldwell
The plaintiff’s motion recites that on April 1, 1902, the court adjudged that Henry M. Hopke, as late sheriff of Pike county, had in his hands the proceeds of sale of personalty attached and sold under order of court, that in such final judgment the court ordered Hopke, as such sheriff, to pay the plaintiff from said funds certain amounts towards payment of the judgment rendered in said cause, but no part of the judgment indebtedness had been paid; that there remained in the hands of said Hopke, as such sheriff, of said proceeds,
Renfro’s motion set out that at the time of the issuance and levy of the writ of attachment and the sale of the attached property he was a resident of the State of Missouri and had a family, and as such was entitled to all the exemption rights fixed by statute, and that prior to the sale of such attached property he had served written notice on Henry M. Hopke, then sheriff of Pike county, and the officer who was executing the attachment writ, claiming his exemption rights in the attached property and its proceeds, and- that nothing had ever been set out to him by the sheriff, either out of said property or its proceeds on account of his exemption claims; that on final judgment rendered by the Pike Circuit Court, the sum of $102.71 was found by the court to be in the hands of the sheriff, being the balance of the proceeds of the sale of Renfro’s interest in the attached property not covered by a landlord’s or a vendor’s lien in favor of plaintiff; that he (Renfro) was entitled to such sum on account of his exemption rights, and prayed for an order on the former sheriff to pay over such amount, which was still in his custody, to Renfro on account of his exemption claim and rights.
The motion of Henry M. Hopke, former sheriff of Pike county, -recited the facts contained in the motion of defendant Renfro, and that said sum was a portion of the interest of Renfro in the,proceeds of sale of such attached property not covered by a vendor’s or a landlord’s lien, exempt from attachment, and belonged to
These three motions were taken up and heard at one time, and from the evidence it developed that Renfro, about six months prior to the hearing’ of the motions, had removed to Illinois, where he was then residing with his family, although at the time of the issuance Of the attachment, writ, the levy on the property and its sale, and for nearly three years thereafter, pending the litigation between Caldwell and Renfro, the latter continued to be a resident of Missouri. The trial court sustained the motion of the plaintiff and overruled the motion of Renfro and Hopke, who thereupon both perfected their appeal.
Appellants asserted the right of Renfro to the fund in question as exempt from seizure by attachment under the provisions of section 3162 of the Revised Statutes of 1899. Exemption rights are purely of statutory origin and exist only so far as thereby created. The statutes of exemption being benevolent and humane in their character, have been given a liberal construction so as to give full effect to the intention of the Legislature but no such construction should be given as to evade the purpose of the statute, and the intention of the lawmakers in extending charity to the impecunious must also be just to the creditors. Wagner v. Furniture Co., 63 Mo. App. 206; Waples on Homesteads and Exemptions, pp. 36, 37 and 764; Thompson on Homesteads and Exemptions, secs. 4 and 731. Appellant Renfro’s right to assert his exemption privileges arose 'when the levy was effected and even before the levy the statute required the officer in whose hands the process had come to apprise him as the head of a family of the property exempt from attachment and execution. Sec. 3163, R. S. 1899. He had asserted his exemption rights in the proper manner by claim in writing served on the officer holding the attachment writ on March 15,
The judgment will, therefore, be reversed and remanded with instructions to the lower court to sustain the motion of appellant.