84 Mo. 210 | Mo. | 1884
It seems that one Carter brought a suit by attachment against Hall, the respondentherein, for rent. That on plea in abatement the issue was found in favor of Hall, and the attached property released; and that judgment was thereafter rendered by the Audrain circuit court in favor of Carter on a trial on the merits. That subsequently, Hall sued appellants, Johnson and Dowell, in the same court, as sureties on Carter’s attachment bond, to recover damages for the breach thereof; that Carter was not a party to that proceeding, which ended in Hall recovering judgment against Johnson and Dowell for his damages. That Carter had execution issued on his judgment, and property of Hall seized, but it had been afterwards released as exempt from execution. That Hall had no property subject to execution, but all his property for a number of years had been such only as he might hold exempt from execution. That Carter, also, is insolvent. That after Hall recovered judgment against appellants, Carter assigned to them, to, protect them as his sureties, the judgment he had previously obtained against Hall. Appellants filed their motion asking the court to set-off against Hall’s judgment the judgment assigned to them by Carter. The parties appeared before the court and the court, upon a hearing, refused to set-off one judgment against the other, and the parties having the assigned judgment, appeal to this court.
It is argued by appellants that no question of exemption arises on the application to set-off one judgment against the other; that such question can only arise when
That a party has no property subject to execution, and when all his property is exempt such is .his condition, has been for ages considered a cogent reason for allowing a set-off against his demand or judgment. Field v. Oliver, 43 Mo. 200; Fulkerson v. Davenport, 70 Mo. 541. When A in attachment or on execution seizes and sells property of B, exempt from such seizure and sale, and B sues and recovers judgment for his damages from .such wrongful taking and selling, it is decided by some courts that A cannot set-off his judgment against B’s. Collett v. Jones, 7 B. Mon. 586; Beckman v. Manlove, 18 Cal. 388. Elsewhere it has been held that while B might follow and recover the property itself, yet ivhen he sues and recovers judgment for the taking and selling, Ms judgment is on the same footing as other judgments. Temple v. Scott, 3 Minn. 419. The former doctrine is, I think, the more reasonable and more nearly in harmony with the policy and spirit of our exemption laws. Under the contrary rule A might get judgment against B, seize and sell B’s horse, though exempt, and obtain, say, partial satisfaction of the judgment from the proceeds of •such sale. And if B should then recover a judgment for damages for the seizing and selling of his horse, A might set-off the remnant of his judgment against it. Thus B would lose Ms horse, although under the law he had the right to hold him exempt from attachment and execution ; and A, by a violation of the law, would collect a portion of his judgment against an insolvent debtor. B's judgment ought to take the place of B’s horse.
It appears, though not clearly, that Hall was not deprived of the property seized in attachment. He recovered damages, it would seem, not for the property itself, but for the wrongful taking of it. In such case his
