42 Mo. App. 253 | Mo. Ct. App. | 1890
The suit is one against a constable' and his surety on his official bond. The cause of action stated in the petition is that the defendant constable, in levying an execution upon plaintiff’s goods, failed to advise him of his right of exemptions under sections 2342, 2343 and 2346 of the Revised Statutes of 1879, and did sell the property, whereby it became lost to the plaintiff, who was at the time the head of a family, and a resident of this state. The defendant’s answer contains a general denial, and an affirmative defense to the effect that the-defendant constable did notify the plaintiff, before the sale of the goods, of hisx right of exemptions under the sections above named, and that the plaintiff thereupon waived his exemptions. A trial of the cause before a jury resulted in a verdict for the plaintiff.
The errors assigned are that the evidence fails to show that the plaintiff was the head of a family; that the verdict is against the great weight of the evidence, and that the court excluded legal evidence offered by , the defendant.
The plaintiff gave evidence showing that he, his mother and his brother occupie'd jointly a fiat in the city, the rent and household expenses being paid by the plaintiff. The brother was of age, and was in the plaintiff ’ s employ under a salary, but the mother was
The plaintiff gave evidence tending to show that he was never notified of his right of exemption as the head of a family. The defendant gave no evidence to contradict this, but did give evidence tending to show that the plaintiff was notified, prior to the sale, to claim “his exemption,” and he replied: “No, he did not want any exemption.” There was no evidence whatever adduced by the defendant which would tend to show that plaintiff was advised of the extent of his rights in the premises. It is the officer’s duty so to advise a defendant in an execution (Hombs v. Corbin, 20 Mo. App. 497), unless, as was the case in Brown v. Hoffmeister, 71 Mo. 411, such defendant, by claiming all the property levied on as exempt, dispenses with the necessity for notice. The verdict, therefore, is in conformity with the evidence on that point.
We see no error in the ruling of'the court in rejecting evidence offered by the defendant. The evidence,
The judgment is affirmed.