93 Mo. App. 62 | Mo. Ct. App. | 1902
This is a garnishment proceeding founded on an execution on a judgment entered in September, 1899, in favor of the Rolla State Bank against Henry dormán and others, in the circuit court of Phelps county, Missouri. The execution was issued in November, 1899, returnable to the March term, 1900. It was duly “served” on de
The execution debtor then filed a claim denominated “an ' interplea,” seeking to have said fund adjudged to be his. That claim is as follows (omitting caption, which recited the full title of the case, of the court, venue, etc.):
“Now at this day comes Henry Gorman, and asks to be made a party to the garnishee proceedings in the above-entitled cause, wherein James 0. Harvey, sheriff of Phelps county, Missouri, has garnished one "William Borgfeld upon all indebtedness he may owe to Henry Gorman, the defendant aforesaid in the above-entitled cause, and wherein said William Borgfeld has answered the interrogatories filed in said proceedings, and by his answer admits that he owns a certain note dated February 2, 1900, to one Henry Gorman for the sum of two hundred and sixty dollars, bearing interest at the rate of seven per cent from date. And, whereas, said William Borgfeld has paid into open court the principal and interest of said note.
“The defendant, Henry Gorman, further states that said note was given as the balance due on the purchase price of one hundred and sixty acres of land,which he held and occupied as a homestead, and which was exempt from any levy under execution for the payment of his indebtedness.
“And further states that all said moneys are exempt, as he has not in personal property, including said note, his exemption in personal property under the statutes of Missouri.
“Wherefore he prays the court to adjudge that said note is his property, and exempt from levy and seizure under execution, and for such other and further judgments in the premises as may seem proper to the court.
“Henry Gorman.”
*67 “Henry Gorman, upon his oath, states that the matters and things set forth in his pleadings herein are true, and that he is at the head of a family, and was at the time said Borgfeld was garnished, and was the sole owner of said note, and that he claims' said note as exempt, and further states that he has not the amount of personal property which the law allows him exempt from, and he hereby claims his exemption rights.
“Henry Gorman.”
Then follows the certificate of verification before the •clerk.
To the foregoing claim, or “interplea,” the plaintiff filed a demurrer which (omitting caption) is as follows:
“Comes now the plaintiff, the Rolla State Bank, and demurs to the interplea of Henry Gorman herein, for the following reason:
“First. Because the said interplea does not state facts sufficient to entitle him to the money attached in the hands -of the garnishee and paid into court.”
The trial court overruled the demurrer. The court then heard testimony and the following proceedings ensued, according to the account given by the abstract submitted here by appellant.
The defendant Gorman was introduced as a witness in his own behalf. He testified that he sold his homestead in 1900, subject to a mortgage; that he got $1,060 for it (subject to the mortgage), $800 of which was in cash, and the rest in a note for $260; that the sale was to William, Borgfeld. The note for $260 was a part of the purchase price of his farm; he was the head of a family; he had lived upon the land for about forty years; he had a mare worth $40, a cow and calf worth about $25, ten head of hogs, worth about $10, a couple of plows, and a wagon worth $20, and that was all that he owned, except his household furniture. Gorman testified further that he had received said $800 cash in Eeb
It should be' added that Gorman further testified that the officer having the execution did not at any time apprise him of his rights to exemptions.
At the close of Gorman’s testimony, the court rendered judgment in his favor for $205, as follows (omitting caption) :
“Now at this day the garnishee herein, William Borgfeld, pays into court the sum of two hundred and seventy-six dollars and forty-five cents, as being the sum of money owing by him to the defendant, Henry Gorman, and the matter coming on to be heard on the interplea of defendant, Henry Gorman, for the same, and the plaintiff having stood on its demurrer to the said plea appears no further to the action, and the matter being heard on the evidence introduced, the court finds that the defendant, Henry Gorman had no homestead at the time of the trial, but is and has been the head of a family at all times since the making of said debt sued on, and is entitled as such to exempt from the execution in lieu of the first and second divisions of section ' . . . of the statute, the sum of three hundred dollars, and that he now has property of the value of ninety-five dollars, not including the sum paid into court, and the said defendant, Henry Gorman, now claiming the right to the full amount of three hundred dollars in lieu of the property named in said subdivisions.
“It is, therefore, considered and adjudged that the sum of two hundred and five dollars of the money now in court, paid by said garnishee, be paid to the said defendant, Henry Gorman, to make him the full sum of three hundred dollars, including the property now held by him, as aforesaid, and that the costs of the garnishment, five dollars be paid out of said money, and the balance ($66.45) be paid to plaintiff.”
There was no testimony offered contradicting that of Mr. Gorman.
1. It is not important by what name the claim of Gorman for the fund paid into court by the garnishee be dubbed. The fund when in court became subject to its orders. It was .entirely appropriate for the court to entertain the claim of exemption then interposed by the debtor. ■ Marchildon v. O’Hara, 52 Mo. App. 523. The latter in his testimony asserted that the officer in charge of the execution had not notified him of exemptions. There is nothing whatever in the record tending to show any waiver of them.
The learned trial judge found as a fact, upon undisputed testimony, that $205 of the fund in court was exempt by reason of the debtor’s selection as the head of a family, under the general exemption law of Missouri. R. S. 1899, sec. 3162 (same as see. 4906 of 1889). He was entitled to that exemption in addition to the household and other property described in section 3159, Revised Statutes 1899.
2. A debt, as well as any other property, may be selected and claimed as exempt from levy and sale under the statutes on that subject. State to use Codding v. Finn, 8 Mo. App. 261. The claim to exemption is not lost by the officer’s omission to apprise the debtor of his right, in the circumstances shown in this case wherein the debtor made his claim for exemption while the fund was yet in court and subject to its orders as already described. Wagoner v. North, 63 Mo. App. 206; Linck v. Troll, 84 Mo. App. 49; Greene v. Baxter, No. 8277, decided at this term. While a fund collected by the process of a court remains in its control, it is competent for the court, by appropriate orders, to so direct its disposition as to do justice between those entitled to be heard concerning it. Ray v. Stobbs, 28 Mo. 35; Aull v. Bay, 133 Mo. 347.
3. It was not essential for the execution debtor to specify the section of the law under which he claimed his exemptions. The trial court took judicial notice of our statutes. It
The learned trial judge gave full effect to these propositions. The judgment is affirmed.
