36 Mo. App. 513 | Kan. Ct. App. | 1889
— This is an action on a constable’s official bond for damages occasioned relator by releasing attached property after the same had been levied upon by the constable. The facts, briefly stated, are about as follows:
Plaintiff Fowler brought suit by attachment before a justice of the peace in Hickory county, Missouri, against one Barney Pitts, for the sum of one hundred and fifty dollars, the ground of attachment being that said Pitts was a non-resident of the state. Upon the writ of attachment the constable, defendant Chaney, seized the twenty head of cattle, in controversy, as the property of said Barney Pitts. Subsequently Mrs. Emily Pitts, wife of said Barney, made claim for the cattle so attached as exempt from attachment or execution as provided for in section 2348, Revised Statutes, 1879, and the constable proceeded to have the same appraised, and set off, as exempt, nineteen head of the cattle and delivered the same to said Mrs. Pitts. One head of the cattle was surrendered up to one Andrew Pitts upon his claim made, and, as testified to by the constable, by the express assent of Fowler’s attorney.
Plaintiff Fowler prosecuted his action against Barney Pitts to a final judgment, and had a special execution issued commanding the constable to make the same out of the property attached. On this the constable returned that he had surrendered nineteen head of said cattle to Mrs. Pitts, as exempt, and had delivered one head to Andrew Pitts, etc.
• The matter of which plaintiff Fowler complains, is that, constable Chaney wrongly released this property from attachment, and that he, Fowler, thereby lost his claim against Barney Pitts. On a trial had before the circuit judge, without a jury, judgment was had for the defendants and plaintiff appeals.
Without considering the various points discussed bv counsel in this case, it is clear, from an inspection of
Mrs. Pitts was entitled only to such exemptions as her husband, Barney Pitts, would have been entitled to, had he been present and made the claim in proper person. The object of section 2348, Revised Statutes, was simply to empower the wife, when the husband “has absconded or absented himself from his place of abode” in this state, to make such claims for exemptions, as the husband, if present, might make. Her rights are no greater than his, were he present asserting the same.. She is in fact, in that consideration of things, his vice — his representative. Steele v. Leonori, 28 Mo. App. 675-684.
Now, if the husband, Barney Pitts, had been present requesting these cattle to be set off to him as exempt, it is quite apparent that his claim must have been denied. The property was attached on the ground that said Barney Pitts was a non-resident of the state, and judgment was had in plaintiff’s favor. This nonresident defendant in attachment then was not entitled to any exemptions under the Missouri statute, section 416, Revised Statutes, 1879. State to use of Schuerr v. Laies et al., 46 Mo. 108. And since the husband was not entitled to any protection of our exemption laws, neither was his wife, Mrs. Emily Pitts. The constable therefore was not justified in setting off this exemption.
The plaintiff Fowler can not now complain, however, of the constable, if the one head of cattle was turned over to Andrew Pitts by the direction or consent of Fowler or his authorized attorney or agent.
But as to the nineteen head released to Mrs. Pitts, the judgment, on the record here produced, should have been for the plaintiff.
Judgment reversed and cause remanded.