Mignogna v. Chiaffarelli

151 Mo. App. 359 | Mo. Ct. App. | 1910

BROADLTJS, P. J.

The case out of which the present proceedings originated was once before this court and is reported in 135 Mo. App.. 68, wherein the judgment of the trial court against the garnishees was affirmed. The garnishees after the affirmance of the judgment paid the fund into the court; whereupon Bruce Barnett, the attorney of Chiaffarelli, the judgment debtor, filed a motion asking that the balance of the fund, after deduction of certain costs, be paid to defendant as head of a family.

The motion recites that the judgment debtor was at the time of the institution of the suit and at all times since and now is the head of a family; that as such under the laws of the state he is entitled to holds as exempt a nine-tenths part, or ninety per cent of the amount in the hands of the garnishees. Upon'the hearing of the motion it was sufficiently shown at the time of the rendition of the judgment against Chiaffarelli, that he was the head of a family, and a married man with two children; that shortly after the rendition of the judgment he left the state; that he was at no time a resident of Missouri; and that the sum garnisheed was due him as wages for services rendered the Electric Park Company.

The plaintiff in the judgment on the trial questioned-the authority of Bruce Barnett on behalf of Chiaffarelli the debtor to claim the exemption. Mr. Barnett was a witness at the trial and he was asked, Q. “When did Chiaffarelli employ you to file this motion here for exemptions?” A. “Oh, Chiaffarelli employed me the day he was garnisheed.” Q. “To file this motion here for exemptions?” A. “No, to save the money for him in any way' it could be saved1 legally and lawfully.” Q:. “When did you hear from him, from Chiaffarelli? ” A. “I haven’t heard from him for a long time. ” Q. “Asa matter of fact he isn’t making this claim for exemptions personally?” A. “Oh, yes, he is.” Q. “You are making it?” A. “I am making it for him. ” ' ■

The court overrruled defendant’s motion for exemptions and he appealed.

It is urged that notwithstanding the debtor was a non-resident of the state at the time of the rendition of the judgment and garnishment, as the head of a family, he was entitled to the exemption provided in section 3162, Revised Statutes 1899, and as amended by session acts 1903, page 195. The section reads as follows as amended: “Each head of a family, at his eleetion, in lieu of the property mentioned in the first and second subdivisions of section 3159', may select and hold, exempt from execution, any other property, real, personal or mixed, or debts and wages, not exceeding in value the amount of three hundred dollars, except ten per cent of any debt, income, salary or wages due such head of a family.” The exemptions in section 3159 are: “First, ten head of choice hogs, ten head of choice sheep, and the product thereof in wool, yarn or cloth, two cows and calves, two plows, one ax, one hoe and one set of plow gears, and all necessary farm implements for the use of one man; second, two work animals, and feed of the value of twenty-five dollars for the stock above exempted.”

There can be no question but what the exemptions mentioned in the latter section were made for the benefit of heads of families resident in the state. And it is evident, construing the two sections together that the Legislature had in mind the same class of persons, residents of the state, and housekeepers, and not persons who might be passing through or sojourning in the state for temporary purposes. The latter class do not as a rule possess any of the articles mentioned in said sections and we cannot conceive any good reason why they should have the benefit of a provision intended solely for resident housekeepers and heads of families. In 1903 a new section was added to said chapter on execution. The act provided that it should follow section 3235 and to be numbered the same with the letter ‘a’ attached. It reads as follows: “Any person holding or who may hereafter hold a judgment against another who is about to leave the state may have execution issued against the property and effects of such person, or any part thereof, sufficient to satisfy said judgment, and all cost that has accrued or may hereafter accrue and in enforcing such execution in such case, no exemptions shall be allowed the execution creditor.” The last word is a misprint, as debtor was meant. Defendant contends that the section is meaningless on account of said mistake. But we think not. The enactment of this section, indicates at least, if nothing more, that the laws of this state governing exemptions were intended for the protection of the resident of the state only.

As to whether Bruce Barnett was authorized to make the claim for exemptions we are of the opinion that the direction by the defendant for him to do everything he could lawfully do to save for him the sum garnisheed was sufficient for that purpose. The authority reposed in the attorney an unlimited discretion to act in the matter, provided always that he should act lawfully. And in the absence of any evidence showing authority we would presume that the attorney of record was in the performance of the duties entrusted to him by his client. For the reason given the cause is affirmed.

All concur.