142 Mo. App. 537 | Mo. Ct. App. | 1909
This is a suit in conversion. Plaintiff recovered and defendant appeals. The controversy arises out of the sale of plaintiff’s property by the constable under execution at the instance and request of defendant. The case proceeds upon the theory that the property levied upon and sold by the constable at the instance of defendant was exempt from execution and therefore defendant should compensate plaintiff on account of the wrong done in directing the constable to sell the same. It appears the present defendant sued the present plaintiff and recovered a judgment against him on an account for groceries. Execution was issued on this judgment and at the instance and request of the present defendant, the writ was levied by the constable upon certain personal property owned by the present plaintiff, who was defendant in the execution. The constable advertised the property levied upon, and sold the same at public vendue. The proceeds of the sale amounted to nearly six hundred dollars, which he applied to the payment of the judgment of the present defendant against plaintiff and satisfied the execution. The constable also paid off two or three small chattel mortgages outstanding against the property levied upon and sold. After paying off the chattel mortgages on the property and satisfying the execution, there remained of the proceeds of the sale less than twenty dol
There is no evidence whatever in the case tending to prove that the defendant conspired in any manner with the constable in order to defeat the exemption rights of the present plaintiff. On the contrary, the proof only goes to the effect that the present defendant, as plaintiff in the execution, pointed out the several head of cattle levied upon and directed the constable to levy upon and sell the same. However, a reasonable inference arises to the effect that the defendant, plaintiff in the execution, directed the constable as well to levy upon and sell the several head of horses mentioned. The constable made two visits to the home of the present plaintiff in order to levy the writ. Upon the occasion of his first visit, he levied upon the eight horses and removed them from plaintiff’s premises. Not being able to locate the six niilch cows and four heifers owned by the present plaintiff, who was defendant in the execution, the present defendant, plaintiff in the execution, accompanied him and pointed out the cattle. But as said there is a reasonable inference arising from the whole testimony that the present defendant directed
Our statute, section 3159, Eevised Statutes 1899, declares a considerable amount of personal property to be exempt from attachment and execution when owned by tbe bead of a family. Among other things therein mentioned are articles pertaining to tbe household, kitchen furniture, family wearing apparel, etc. With this portion of tbe section we are not concerned, however. Tbe first and second subdivisions of that section are as follows: “The following property when owned by tbe bead of a family, shall be exempt from attachment and execution: first, ten bead of choice bogs, ten bead of choice sheep, and tbe products 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 tbe use of one man; second, two work animals and feed of tbe value of twenty-five dollars for tbe stock above exempted.” Another section of tbe statute, section 3162, Eevised Statutes 1899, provides that each bead of a family,- at bis election, in lieu of tbe property mentioned in tbe first and second subdivisions of section 3159 last quoted, may select and bold exempt from execution, any other property, real, personal or mixed, or debts and wages not exceeding in value the amount of three hundred dollars. It seems plaintiff, who was defendant in tbe execution, did not
“It shall be the duty of the officer in whose hands any execution may come, before he shall levy the same, to apprise the person against whom such execution has issued of the property exempt under sections 3158, 3159 and 3162, and his right to hold the same as exempt from attachment and execution; and such officer shall summons from the neighborhood three disinterested householders, who, after being sworn honestly and impartially to appraise the property exhibited to them, shall, proceed to appraise and set apart to said defendant the property exempt to him under this chapter.”
We have recently declared the provisions of this section to be mandatory. [Irondale Bank v. Terrill, 135 Mo. App. 472, 116 S. W. 481.] And we entertain no doubt whatever that Avere this an action against the constable on his official bond for a breach- of this obligation, enjoined by the statute, a recovery should be sustained on the facts of this case. This for the reason the constable not only disregarded the pointed command of the statute by failing to inform the present plaintiff, who was defendant in the execution, of his rights thereunder, but he disregarded the request
As before stated, this suit predicates and proceeds upon the doctrine referred to, that is, upon the theory that the present defendant who was the creditor and plaintiff in the execution, pointed out the property, and directed the constable to levy upon and sell the same. Now it appears that the constable levied upon all of the cattle and all of the horses owned by the plaintiff who was defendant in the execution. This being true, he levied upon and sold at least two horses and two cows which were absolutely exempt. Had the plaintiff seen fit to do so, he might have recovered in this action the value of such horses and two cows. By the first and second subdivisions of section 3159, these animals are rendered absolutely exempt from levy in the first instance. Be this as it may, the right of exemption is a personal privilege which the debtor may waive if he chooses to do so. [Osborne v. Schutt, 67 Mo. 712; Holmes v. Corbin, 20 Mo. App. 497; Stotesbury v. Curtland, 35 Mo. App. 148, 155.] By asserting his right of election under section 3162 to take $300 worth of other property in lieu of that rendered absolutely exempt in the first and second subdivisions of section 3159, plaintiff waived his right to claim the two horses and two cows referred to as exempt under the provisions of sec
For the reasons given, the judgment should be reversed. It is so ordered.