8 Mo. App. 286 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is an action of trespass. It appears that defendant Frank, who was a constable, levied an execution upon certain personal property of plaintiff, who set up that he was the head of a family, and claimed the property as exempt. Frank refused to proceed unless his co-defendants, Thiel and Lange, would indemnify him. They then executed to him an indemnifying bond with defendant Sennewald as surety. Frank then seized and sold the property, and it was lost to plaintiff. There was a verdict and judgment for plaintiff for $321.
Defendants filed a joint general denial. Defendant Frank afterwards filed an amended answer, in which he sets up as a defence that he was a constable, and seized and sold the goods under execution. Plaintiff replied that he had claimed as head of a family, and that defendant Frank refused to appraise or release the same, acting in this under the direction of his co-defondants. Appellants contend that there is-here a departure in pleading. There is no departure in this, because there is no dereliction of the antecedent.ground of complaint for another, distinct from, and not fortifying the former. Where one sued in trespass, defendant justified taking-the cattle damage feasant by distress, and plaintiff replied .
It was further objected that the reply should have stated the facts constituting plaintiff the head of a family. The ultimate fact that plaintiff was the head of a family was stated plainly enough. The evidential facts, and the law applicable to those facts, had no proper place in the pleading'. Evidence should never be pleaded, but only issuable facts.
The evidence showed that plaintiff kept house in Carond’elet with two sisters and a brother, aged respectively
A family is the collective body of persons who live in one house, under one head or manager. The relations between them must be of a permanent- and domestic character, not that of those abiding temporarily together as strangers. There can be no doubt that one who, with his sister, keeps house for his younger brothers and sisters, thus partly contributing to their support, is the head of a family under the exemption laws, though neither a husband nor a father, and though the children be not wholly dependent upon him. Wade v. Jones, 20 Mo. 78. The instructions, in this respect, were warranted by the evidence, and were not erroneous.
It is immaterial that plautiff may have had other.property. He had a right to select as exempt any property he chose, up to the exemption limit. If the constable claims that the defendant in his execution' has other property, it is for the constable to find it, and to make it available towards the satisfaction of the execution in his hands. 2 Mo. App. 335 ; 44 Mo. 99 ; 21 Mo. 161, 510.
The co-defendants of the constable, by directing and encouraging him to commit the illegal act complained of, became liable with him.
On the pleadings and evidence, the judgment was for the right party. The finding was not excessive. We see no error to the prejudice of appellants, and the judgment will be affirmed.