First National Bank of Monett v. Morkamp, 130 Mo. App. 118

First National Bank of Monett v. Morkamp

130 Mo. App. 118 | Mo. Ct. App. | 1908

BLAND, P. J.

Defendant Morkamp forged the signatures of sureties to two notes, one for $100, the other for $75, and discounted them to the plaintiff bank. On discovering the forgery the bank brought suit by attachment against him and attached a lot of farming implements, some hogs, corn and grass seed. After the writ of attachment was levied Morkamp' was charged with forgery and committed to jail, where he remained and was confined at the time of the trial. Following is an agreed statement of the facts:

*120“On April 7, 1906, and prior thereto, Wm. H. Morkamp obtained of the First National Bank the sum of $175 for which he had given two promissory notes, one for $100 and one for $75, payable sixty days after date; that all the signatures to said notes as to the makers, are said to have been forged except that of Mr. Wm. Morkamp; that on April 6,19,06, Wm. H. Morkamp and Lizzie Morkamp, his wife, had made a contract of sale of all their personal property that was not under mortgage to W. O. Folks, and E. A. Raigan, their brothers-in-law for the consideration of $200, none of which had been paid or any property delivered thereunder, on April the seventeenth the above plaintiff attached all the above named property of said Wm. Mor-kamp at the Morkamp residence, except the household and the kitchen furniture, and the property under mortgage that Wm. Morkamp and Lizzie Morkamp, his wife, owned, who, at the time, lived about six miles from Mt. Vernon, in Freistatt township where the said property was attached, and levied upon by the constable of Freistatt township on the morning of April 7, 1906, and served papers upon W. H. Morkamp by personal service, who had the property there in his possession; that Folks and Raigan were on the premises fixing to move the hogs and all other property by virtue of their bill of sale, but hadn’t yet loaded or removed any of the same when the property was levied upon, by the constable: that Wm. Morkamp was on the tenth day of April, 1906, arrested on a criminal charge of forgery by virtue of a warrant sworn out by the prosecuting attorney of Lawrence county for forging the name of W. H. Hogemier, of Stotts City, and was taken to jail at Mt. Vernon on said date, where he has ever since remained and is at this time, said Wm. H. Morkamp is under a penitentiary sentence; that on the twenty-third day of April, 1906, Lizzie Morkamp^ wife of W. H. Morkamp, who being, then in the jail as aforesaid, *121claimed the property exempt from attachment and notified the constable of such claim and on his refusal to allow her such claim she filed her interplea herein on said day; that said mortgage aboye mentioned was given for bona fide debts of the defendant and the property afterwards sold and didn’t pay the amount for which it was mortgaged.”

Evidence was introduced to prove the value of the property. Plaintiff’si evidence tends to show that when the writ of attachment was read to Mr. Morkamp, the officer notified him of his statutory exemption rights and asked him to set out what he claimed as exempt; that Morkamp replied he had sold everything he had and had nothing to make the claim on. To the contrary, the evidence for the interpleader tends to show that Morkamp was not apprised of his exemption rights by the officer and was not asked by him to point out or set out what he claimed to be exempt. The property attached was all the property Morkamp possessed, except an inconsiderable amount of household goods and other persona] effects mortgaged to their full value.

But two questions are presented by the record for decision: First, does the evidence show that Mr. Mor-kamp waived his right to his statutory exemptions at the time the attachment was levied? This was an issue of fact for the jury which, under proper instructions, they found for the interpleader. The second question is, do the facts and circumstances show that Mrs. Mor-kamp,. the interpleader, has a right, under the statute, to maintain the action? The statute (sec. 8164) provides that the wife may claim the statutory exemptions to which her husband is entitled when the latter “has absconded or absented himself from his place of abode,” and that she may make the claim at any time before the property is sold by the officer making the levy or seizure. The absence of Morkamp from his home was involuntary. He was confined in jail and was not at liberty *122to go to tbe officer and claim bis exemptions. Bnt it is claimed be conld bave filed bis interplea and was therefore tbe proper party to interplead. It is true be was, under no legal disability and might have filed an interplea for tbe property, claiming it as exempt from attachment. Bnt tbe statute does not rest tbe right of the wife to claim property as exempt upon tbe ground that her husband is for any reason incapacitated to claim bis exemption, but upon tbe fact that tbe husband is absent from bis “place of abode.”It seems to us that bis involuntary as well as bis voluntary absence places tbe wife in a position to make tbe claim under tbe statute. On tbe undisputed facts tbe interpleader was clearly entitled to recover, and tbe judgment is affirmed.

All concur.