103 Mo. App. 158 | Mo. Ct. App. | 1903
Lead Opinion
— This is a proceeding in equity whereby the plaintiff seeks to have its judgment against defendant Bowring-set off against his judgment against plaintiff. The trial court refused plaintiff’s prayer and it duly appealed to this court.
The case has a lengthy history. It has been twice before in this court. Bowring sued the plaintiff railway companj’ in Clay county for negligence in killing a hog owned by him of enormous size, alleged to weigh 1,500 pounds and to be of the value of $1,500. After one or two trials without result, he failed in the trial court and on appeal here the judgment was reversed and the cause remanded. 77 Mo. App. 250. At the next trial the defendant (Bowring) dismissed his ease at the close of the evidence and judgment was rendered against him in this plaintiff’s favor for costs amounting to $361.18. Execution was issued against him for such costs and re
Defendant (Bowring) afterwards brought a new suit in Jackson county, alleging “that on the the 14th day of September, 1896, plaintiff was the owner of an exceedingly valuable animal of the swine species. Said animal was three years of age and was about the weight of .1,500 pounds, measured seven feet and nine inches in length and seven feet six inches around the girth, and was forty-two inches in height. Said animal was used by plaintiff for exhibiting in a covered tent at fairs and other public assemblies for profit and gain, and for the purposes so used and by reason of its enormous size and education was of the reasonable value of fifteen hundred dollars, of all of which defendant had full knowledge.”
A change of venue was taken to Johnson county where, in March 1900, plaintiff obtained judgment for $225 as the value of the hog, which he immediately assigned to defendants Hollis and Houts. This judgment was affirmed in this court (90 Mo. App. 324). The parties were thus left, each with a judgment against the other. Plaintiff then instituted this proceeding for the purpose stated at the outset. At the trial it was shown, among other things, that Bowring was the head of a family and that he had no property. It was further shown that he gave written notice of claim to the sheriff of Johnson county January 11, 1902 (about two years after obtaining his judgment in Johnson county and assigning it to Hollis and Houts), to the judgment as selected by him in lieu of other property, he having none other.
The ground upon which defendants seek to sustain the judgment of the trial court is that the hog was specifically exempt fro mexecution against defendant Bow-ring under section 3159, Revised Statutes 1899, which, in the first and second division thereof exempts the following property when owned by the head of a family: “First, ten head of choice hogs, ten head of choice sheep
Defendants are also right in their further contention that being so exempt, a judgment for its value when lost, is also exempt. Crawford v. Carroll, 93 Tenn. 661; Howard v. Tandy, 79 Tex. 450; Below v. Robbins, 76 Wis. 600; Wylie v. Grundysen, 51 Minn. 360; Stebbins v. Peeler, 29 Vt. 289; Thompson on Homesteads, secs. 748, 749. Analogous to this principle is the doctrine-that insurance money or a judgment for insurance on exempt property is also exempt. Thompson on Homesteads, section 750; Wright v. Brooks, 101 Tenn. 601; Ellis v. Pratt City, 111 Ala. 629; Puget Sound Packing Co. v. Jeffs, 11 Wash. 466.
But was the particular hog over which this litigation began exempt within the meaning of the statute? We think it was not.. The primary purpose in keeping hogs is for food, and evidently, the object of the statute in exempting ten head of hogs was to afford the debtor and his family the use of them for food. That would include, incidentally, their propagation, as well as their sale to others, who would, in turn, use them for such purposes. In each of these uses they are subserving their primary purpose; that is, the animals are kept in existence and they are bartered from man to man for food.
As illustrative of this view of the statute we refer to the provision of the exemption laws of most States that one or more work animals shall be exempt, upon which it is held that if a stallion is kept alone for breeding purposes he would not be within the statute. Robert v. Adams, 38 Calif. 383; Kreig v. Fellows, 21 Nev. 307; Smith v. Dayton, 94 Iowa 102; Allman v. Gann, 29 Ala. 240. In the last case it was said: “If the horse was kept for a business, or livelihood, outside of the comforts, the wants and requirements of the family, and of its several members, then such horse is not exempt.”
Notwithstanding a debtor may not be allowed to claim an article of property as specifically exempt under section 3159, yet, as said above, if no claim is made under that section, he may claim the same property under section 3162. In this case though Bowring valued the hog at $1,500 the jury valued it at only $225, and accepting the latter sum as the true value, he insists that as he had no other property, his claim of exemption should be allowed him under the latter section. The difficulty with such claim is that it has been ruled by this court in a well-considered opinion written by Judge Hall that the right to select property under the latter section in lieu of that made specifically exempt under the former, is a personal privilege of the debtor which can not be transferred to another. That if the debtor elects to claim under the latter section and makes his selection of property, he may then sell it and the purchaser will also hold it exempt. But if he sells the property before he makes the selection, the right of selection does not pass
In this case, Bowring had no property but the hog, and it not being specifically exempt under section 3159, he, ordinarily, had the right to select it (that is, the judgment for its value) under-section 3162, but as we have already stated, he transferred his interest in the judgment and thereby all right of exemption ceased under the latter section.
The judgment should be reversed and cause remanded.
Rehearing
SUPPLETORY OPINION, ON REHEARING.
— The plaintiff’s judgment antedated that of the defendant, and the moment the latter was recovered, the defendant being insolvent, the plaintiff’s equitable right of set-off attached to it and became a right which a court of equity, when its interference is appropriately invoked, will enforce.
The mere fact that the plaintiff and defendant Bow-ring each had a judgment against the other was not suf
There is a great variety of cases asserting the rule and illustrating its application but the underlying and persuading principle which moved equity in all of them was the injustice of compelling the defendant to pay the demand against him and make the uncertain claims of insolvency of the plaintiff when called upon with an execution. Barnes v. McMullins, 78 Mo. 260, and cases there cited; Foote v. Clark, 102 Mo. 398; Gemmell v. Hueben, 71 Mo. App. 291. In all these cases there had to be some fact, such as insolvency or non-residence, disclosing the imminent danger of the defendant being compelled to pay without receiving credit for his cross-demand.
“The right of set-off is not an equity which the original debtor may, at all events, assert against the assignor
It has been held by us that in actions at law where the right of exemption exists, the right of set-off will not overthrow it. Wagner v. Fur. Co., 63 Mo. App. 206; Lewis v. Gill, 76 Mo. App. 504. And so it has been held in a Pennsylvania case (Wilson v. McElroy, 32 Penn. 82), that in an action against an officer for seizure under an execution of property of a defendant exempt by statute, that the execution debt could not be “defalked against the damages” recovered for the wrongful seizure. And we take it that while the chancellor'in enforcing the equitable right of set-off will most generally fol-. low the exemption statutes, yet he will not always do so, for there may be facts and circumstances disclosed which equity and good conscience would require the enforcement of the right notwithstanding the statute. This principle finds illustration in Duffy v. Duffy, 155 Mo. 144, where an insolvent son, the head of a family who owed a debt of record — a judgment to his deceased fa-, ther’s estate — was denied his statutory exemptions until that debt was paid. And in Lietman’s case, 149 Mo. 1.12, it was held that the statute of exemptions could not be invoked by an heir to exempt his interest in the real
It seems that Bowring brought an action against the plaintiff carrier for a breach of a contract of affreightment and failed to make out his case, and judgment was given against him for costs. And in another action on the same contract he succeeded in obtaining judgment. It is now insisted that Bowring is entitled to have his judgment satisfied by plaintiff without satisfying that of plaintiff herein against him. The only ground upon which this insistence rests is that Bowring is the head of a family and therefore his judgment against plaintiff is exempt under the statute.
Bowring may well felicitate himself on the forbearance of the court to require of him, in the action in which he recovered the judgment, .to pay the cost that had been adjudged against him in the other suit in which he was unsuccessful as a condition upon which he would be allowed to further prosecute that action. Surely, it can not be that after being allowed to prosecute his several actions without payment of any cost and that after he succeeds in the last one to obtain a small judgment, much less than that previously rendered against him for cost that a court of equity in a proceeding of this kind will refuse to decree that his judgment be set-off by that of the plaintiff herein. It seems that the amount of the cost which Bowring was adjudged to pay plaintiff was due to officers of the court and witnesses and for which the plaintiff was primarily liable under the statute, and that these costs it has paid. The plaintiff has thus paid for Bowring a greater sum than that of his judgment against it, and now to require it to satisfy the judgment against it under such circumstances would be most inequitable and unconscionable.
We can not think that in a case like this the equit
The contention of defendants Hollis and Houts that Bowring had a statutory right to claim and hold his judgment against plaintiff as exempt property, was discussed and disposed of adversely to them in the opinion to which this is suppletory, and as no reason is now seen for a different disposition of it, it must stand undisturbed.
But Hollis and Houts claim that the latter made an agreement with Bowring before any of the several actions were brought against the plaintiff that they were to have one-half of whatever the amount of the recovery should be as a fee for their services therein, and that the assignment was made to secure them as to that. It sufficiently appears from the record that Hollis was entirely familiar not only with the litigation that was carried on between Bowring and plaintiff through all of its various stages, but that he was fully apprised of Bow-ring’s insolvent condition, and he must be held to have had full knowledge of the existence of plaintiff’s judgment at the time of the assignment of Bowring’s judgment against plaintiff. In this State such an assignment gives an attorney no lien on the judgment for his fee (Skinker v. Smith, 48 Mo. App. 91) and even in those jurisdictions where such a lien is given, an assignment of the judgment prior to the motion to have the set-off made will not defeat the right of set-off. Yorton v. Railroad, 62 Wis. 367; Marshall v. Cooper, 43 Md.
In Black on Judgments, section 954, it is said: “Most of the cases [citing them in note 81] seem to agree in the rule that where a judgment recovered by the plaintiff has been assigned to his attorney in good faith, in payment for his services in the action, the court should refuse to set off against it that recovered by defendant against plaintiff prior to the assignment,” provided the attorney taking the assignment had no notice of such prior judgment. As Hollis had, as has been stated, notice of the prior judgment at the time of the assignment of the latter to him, this rule is inapplicable here. There is much diversity of opinion among the courts as to when or to what extent or under what circumstances one judgment may be set off against another after the assignment to a third party; as may be seen by reference to the cases cited in note 76 to section 954 of Black on Judgments. We have not gone to the great length that many of them have in applying the right. We have gone no further than to declare, if the assignee has notice of the other judgment at the time of taking the assignment, that he will take subject to the equitable right to set it off. Skinker v. Smith, 48 Mo. App. supra.
The plaintiff did not assent to the equitable assignment of Bowring to Hollis of fifty per cent of the amount of the judgment and so it was ruled in Crecelius v. Bier-
