96 Mo. 133 | Mo. | 1888
Action on the official bond of the defendant Barnett, as constable, his sureties being joined as co-defendants. The breach of the bond assigned in the concluding portions of the petition is as follows : “ For breach of said bond plaintiff states that at the times hereinafter mentioned defendant Barnett was constable of .Sedalia township as aforesaid, and plaintiff states that on the eleventh day of October,
“Plaintiff further states that said defendant Barnett has failed and refused to pay the said sum of one hundred dollars ($100..00), so collected by him on said execution, over to said Henry Lewis or his attorney, although often requested so to do. Whereby plaintiff states that the said Henry Lewis has been damaged in the sum of one hundred dollars ($100) with one hundred per cent, per annum interest thereon from the said seventeenth day of October, 1882.” Wherefore plaintiff prays judgment, etc., etc.
After certain formal admissions, the defendants answered as follows: “Defendants deny that said R. W. Barnett has committed a breach of said bond as is alleged in plaintiff’s petition or otherwise. Defendants admit that on the eleventh day of October, A. D. 1882, an execution in favor of the relator Henry Lewis, and against the Missouri Pacific Railway Company for one hundred dollars, was placed in said Barnett’s hands, and that on the seventeenth day of October, 1882, he returned the same fully satisfied, as is alleged in plaintiff ’s petition, and defendants admit that said Barnett
Thereupon the plaintiff filed a motion for judgment, based upon the ground that the facts set up in the
The only question then is, do the facts set forth in the answer, and confessed by the motion to be true, form any bar to plaintiff’s action? Under the provisions of Revised Statutes, section 2343, a debtor, when the head of a family, is entitled to hold as exempt from attachment and execution certain personal property. Under the provisions of section 2346, such debtor has his election whether he will select the property mentioned in the first and second subdivisions of the section already referred to, or whether he will select as exempt and in lieu thereof, any other property, real, personal or mixed, or debts and wages, not exceeding in value the amount of three hundred dollars. Under thé provisions of section 2347, it is the duty of the officer into whose hands any execution may come, and before he shall levy the same, to apprise the person against whom such execution has issued* of the property exempt under the previous sections, and of his right to hold' the same as exempt from attachment and execution, etc., and shall proceed to set apart to the defendant the property exempt to him under the statute. Under the provisions of section 2519, no person can be charged as garnishee on accdunt of wages due from him to a defendant in his employ for the last thirty days service.
In State to use v. Barada, 57 Mo. 562, it was ruled that a justice of the peace has no jurisdiction in a case of garnishment to determine the rights of a defendant to hold as exempt from execution the garnished debt, and that the protection of the execution debtor and defendant is cast by the law on the officer holding the execution, who is bound by the law to apprise the debtor of his rights, to allow him to make his selection and claim, and in his return upon the execution, to show the amount of the debt set over to the defendant. It will be observed in this case that the defendant based his
If the garnishee, instead of one hundred dollars, in wages, had a horse of the defendant’s worth that sum in its possession, which, in discharge of its liability, as provided in section 2551, it had turned over to the constable, and the defendant had thereupon met him in the way and demanded such property as exempt, it could not be doubted that his claim must have been respected and that no liability would have been incurred by the constable in thus respecting it, thereby obeying a plain statutory duty. Several instances have occurred in this state where constables have been held liable because of failure to apprise a debtor of his exemptions under the law, and because of failure to respect such exemptions. State to use v. Farmer, 21 Mo. 160; State to use v. Romer, 44 Mo. 99; State ex rel. v. Beamer, 73 Mo. 37. Now, it cannot be possible that the law would hold a constable responsible if he failed to observe and obey the mandates of sections already quoted, and still hold
No importance is to be attached to the fact that the execution had been returned satisfied, since the money had not been paid to the execution plaintiffs when demanded by the execution defendant, and since also, the return on the writ was awarded, and no showing to the contrary being made, the presumption is the amendment was legitimately made, and at all events, the claim of the defendant, in the circumstances set forth, was in time.
It has been deemed unnecessary to discuss the constitutional questions upon which this cause has come up to this court, and this because of our action on the merits of the cause, any discussion of other questions would have been superfluous. Under recent constitutional amendments, the whole cause came before us for discussion and it was only requisite for us to discuss such of the points involved as disposed of the case.
Holding these views, the judgment must be reversed and the cause remanded.