Brown v. Hoffmeister
| Decision Date | 30 April 1880 |
| Parties | BROWN, Appellant, v. HOFFMEISTER. |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.
AFFIRMED.
Defendant, as marshal of the Cape Girardeau common pleas court, held an execution in favor of one Meyers and against the present plaintiff. The latter was a practicing lawyer, and owned a library of law books worth $3,000, besides other personal property worth $700. Defendant being about to make a levy, Brown wrote him a letter, in which he gave a list of his books and claimed exemption for all of them, as well as his other property. Defendant, nevertheless, levied upon and sold part of the books. Brown then brought this suit, alleging that the books were all exempt from execution, and that the levy was illegal. There was a judgment for defendant. Hence this appeal.
Wilson Cramer and Lewis Brown for appellant.
Houck & Ranney for respondent.
The question presented by the record is whether the defendant, an officer, was justifiable in making a levy on and sale of the books of plaintiff, he being a lawyer. Whether the officer could justify under the writ, would, for the most part, depend upon whether the property seized and sold was, under the law, exempt. The 9th section of the act respecting executions, provides that certain property, when owned by the “head of a family,” shall be exempt from execution. 1 Wag. Stat., p. 603, § 9. And the 11th subdivision of that section gives all lawyers the “privilege of selecting such books as may be necessary to their profession, in the place of other property herein allowed, at their option.”
We do not agree with counsel for plaintiff that it stands admitted by the pleadings “that said books are, and were necessary to plaintiff, in his profession as a lawyer,” or that plaintiff was the head of a family, since the opening paragraph of defendant's answer contains a general denial of the averments of the petition; and this is sufficient under the amendatory statute of 1875. R. S. 1879, § 3521. So that, as there was no evidence introduced that the plaintiff was “the head of a family,” and as that averment of the petition was controverted by the answer, it follows that plaintiff has failed to show himself entitled to any exemption, and consequently, to any right of action against the officer, and the judgment should, therefore, be affirmed.
But waiving such merely technical considerations, we do not think the plaintiff has shown himself entitled to a recovery upon the merits. Our view of the 9th section, supra, is, that the construction of the 11th subdivision, contended for by the plaintiff, cannot prevail. By providing that a lawyer, the head of a family, might have the...
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...appraisers, as required by section 5436, the sale will be void, and will pass no title. Vogler v. Montgomery, 54 Mo. 577; Brown v. Hoffmeister, 71 Mo. 411; State v. Beamer, 73 Mo. 37; State v. Barnett, 96 Mo. 133, 8 S. W. 767; Paddock v. Lance, 94 Mo. 283, 6 S. W. 241; Peake v. Cameron, 102......
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...property up to the limit fixed by law," which at that time was $300, exclusive of $100 of furniture and household goods. In Brown v. Hoffmeister, 71 Mo. 411 (1880), the debtor/attorney owned a library of law books worth $3000 and other personal property worth $700. The debtor claimed that a......
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...consequence of the omission of what the Supreme Court declares to be the constable's duty. We are referred to the recent case of Brown v. Hoffmeister, 71 Mo. 411. But the note of this case to which we are referred does not appear to be at all in disaccord with the ruling in The State v. Bar......
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