28 Mo. App. 675 | Mo. Ct. App. | 1888
delivered the opinion of the court.
In this case certain household furniture was attached in the suit of the plaintiff against Almon B. Thomson, an absconding debtor, and under the same attachment, a garnishment was also served upon It. U. Leonori, Jr., and R. U. Leonori, Jr., & Company. Interrogatories were exhibited to the garnishees, who made certain answers to the same. Thereupon the plaintiff filed a
It is perceived that the question for decision is, whether where, under Revised Statutes, section 2348, a wife claims, as exempt from attachment against the creditors of her husband, who has absconded, certain personalty of her husband, and such property is appraised at the value of four hundred dollars, and delivered to her, and she on the next day sells it for one thousand dollars, in cash, such one thousand dollars, or any portion of the same, and if any, how much, is subject to garnishment in the hands of the auctioneer who effected the sale and received the purchase money under
The statute reads as follows: “ The following property, when owned by the head of a family, shall be exempt from attachment or execution: First, ten head of choice hogs, ten head of choice sheep, and the product 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 the use of one man; second (two work animals), working animals of the value of one hundred and fifty dollars; third, the spinning-wheel and cards, one loom and apparatus, necessary for manufacturing cloth in a private family ; fourth, all the spun yarn, thread, and cloth manufactured for family use; fifth, any quantity of hemp, flax, and wool, not exceeding twenty-five pounds each; sixth, all the wearing apparel of the family, four beds with usual bedding, and such other household and kitchen furniture, not exceeding the value of one hundred dollars, as may be necessary for the family, agreeably to an inventory thereof, to be returned on oath, with the execution, by the officer whose duty it may be to levy the same ; * * * ninth, all such provisions as may be on hand for family use, not exceeding one hundred dollars in value; tenth, the Bibles and other books used in a family, lettered gravestones, and one pew in a house of worship.” Rev. Stat., sec. 2343. “ When the articles specified in the first, second, third, fourth, fifth, sixth, ninth, and tenth clauses of section two thousand three hundred'and forty-three, shall belong to a married man, and he, at the time the execution is levied, or at any time before the sale under it, has absconded or absented himself from his place of abode, his wife may claim said articles, or, in lieu of the prop
It is perceived that section 2343 exempts certain specific chattels from attachment and Execution when owned by the head of a family, such as the legislature must have supposed to be necessary for the subsistence and well-being of a family. It is perceived that the property belonging to a married man, which, by section 2348, his wife may claim as exempt from execution or attachment, in the event of his absconding or absenting himself from his place of abode, is limited to the specific chattels described in several of the subdivisions of section 2343, with the proviso that, in lieu of articles mentioned in the first and second subdivisions thereof, the wife may select any other property not exceeding the value of three hundred dollars. If, therefore, the appraisers set apart to Mrs. Thomson the articles specified in the sixth clause of section 2343, to the value of one hundred dollars, and she selected in lieu of articles mentioned in the other clauses this other property set apart, which they appraised at the value of three hundred dollars, so long as the specific articles were those named in that section, she could hold them against the same attaching creditor without any new appraisement; for it is conceded that such an appraisement is conclusive. But it is conclusive only to the extent of the specific articles which are set apart. The legislature does not, in section 2348, undertake to change the title of the property from the husband to the wife in the event of his absconding or absenting himse If from his place of abode
If, therefore, a wife, to whom certain specific articles are set apart under this section, elects to sell them or to cause them to be sold, she must be understood as selling the property of her husband, whether with or without his authority. In either event, the proceeds of the sale become the property of the hnsband, and not the property of the wife. The specific articles set apart to her having thus become transmuted into money, this money is not, on any principle with which we are acquainted, protected from a new levy by a creditor of the husband, even under the same attachment. The appraisement is not conclusive of the right of the wife to retain this money as against the husband’s creditors, because this money has not been levied upon and the appraisers have not set it apart to her. If the money so coming into her hands, is claimed by her as exempt from the attachment, under the provisions of section 2348, there must be' a new appraisement, under which the amount of money which she would be entitled to retain would not exceed the value of four hundred dollars, by the terms of the statute. Nor can it make any possible difference whether these specific articles origin
The appraisement is not a controlling fact in the case. There is no warrant, under the statute above quoted, for placing the limit of four hundred dollars upon the property which a wife, under such circumstances, can ordinarily claim. The property mentioned in the first, second, third, fourth, fifth, sixth, ninth, and tenth clauses of section 2343, may in the aggregate amount to more than four hundred dollars, and yet the wife, under such circumstances, may claim them all, if property of the various kinds therein mentioned is on hand. No right of substitution seems to be given to the wife, under a literal reading of the statute, except to, the extent of three hundred dollars ; but judicial construction and usage seem to have placed it at four hundred dollars, including one hundred dollars given in lieu of the articles mentioned in subdivision, six of sec
The judgment is reversed and the cause remanded, with the concurrence of Judge Rombauer.