68 Mo. App. 307 | Mo. Ct. App. | 1897
In November, 1893, Williamson, who is defendant in this suit, had a judgment against Davis, the above named plaintiff. On an execution issued thereon, the constable, by Williamson’s direction, served a notice of garnishment on one Thomas, who •appeared before the justice, admitted that he owed Davis $62.25, and to discharge himself Thomas paid that amount over to the constable, which was then applied to the payment of Williamson’s judgment. Subse
Under the laws of this state an execution debtor is allowed to retain certain articles of property as exempt. These are definitely pointed out in section 4903, Revised Statutes, 1889. The first and second subdivisions of that section name as absolutely exempt from execution a certain number of hogs, sheep, cows, farming implements, work animals, etc. Then follows section 4906, which provides that “each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of section 4903 may select and hold exempt from execution, any other property, real, personal, or mixed, or debt or wages not exceeding in value the amount of three hundred dollars.” Then, further, section 4907 makes it the duty of the constable or sheriff, before levying the execution, to advise the debtor of his rights under the foregoing sections.
The question now is, should the defendant, under the law and facts above stated, be held liable for the levy of his execution on the debt which the garnishee Thomas owed the plaintiff, and which the latter claims was exempt from execution. "We think not. Thomas’ indebtedness to Davis was not one of those articles which the statute specifically and absolutely exempted from execution. Said chose in action could only be classed as exempt when selected by the execution debtor in place, or in lieu, of those articles mentioned in the first and second subdivisions of section 4903. And until so selected by the execution defendant such property was not exempt but was subject to levy. In this case the execution defendant did not select the Thompson debt and thereby manifest his election to hold the same as exempt in lieu of other specific exemptions. And, failing to do so, said claim retained its former status as property liable to execution. It could not take on the character of exempt property until the option of selection was exercised by the debtor. The following authorities sustain this course of reasoning: Alt v. Lafayette Bank, 9 Mo. App. 91; Hombs v. Corbin, 20 Mo. App. 497-507; Stotesbury v. Kirtland, 35 Mo. App. 148; Frost v. Shaw, 3 Ohio St. 270; State v. Morgan, 3 Ired. 186-192; Stewart v. Stewart, 65 Mo. App. 663; Finley v. Barker, 110 Mo. 408.
The defendant Williamson is not, then, under the facts shown in evidence, chargeable with directing the levy of an execution on the plaintiff’s exempt property. The property seized was not then exempt. It could only become so by the exercise of the right of selection in the execution defendant. The harm (if any) done this plaintiff was because of the constable’s failure to advise him of his exemption rights, so that he might
The judgment of the circuit court will be reversed.