Caldwell v. Renfro

• Decision Date: 17 March 1903
• Citation: 99 Mo. App. 376,73 S.W. 340
• Parties: CALDWELL v. RENFRO et al.
• Court: Missouri Court of Appeals

73 S.W. 340

99 Mo. App. 376

CALDWELL v. RENFRO et al.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

EXEMPTION—CLAIM AGAINST EXECUTION—REMOVAL FROM STATE.

1. The right to an exemption, claimed against execution by one as the head of a family, under

Rev. St. 1899, § 3162, is not lost as against such execution, he then being a resident of the state, by his subsequent removal therefrom.

Appeal from Circuit Court, Pike County; D. H. Eby, Judge.

Action by George M. Caldwell against Thomas J. Renfro. From a judgment relative to a claim of exemption, defendant and H. M. Hopke, sheriff, appeal. Reversed.

Hostetter, Dempsey & McGinnins, for appellants. J. H. Blair & Son, for respondent.

REYBURN, J.

In an action by attachment brought February 21, 1899, by George M. Caldwell against Thomas J. Renfro, the attachment was sustained October 8, 1900, and final judgment rendered April 1, 1902, in favor of plaintiff against defendant, for the aggregate amount of $2,092.03. The causes of attachment assigned charged Renfro with concealing and disposing of his property so as to hinder and delay his creditors, and being about to so transfer and remove his property, but did not embrace any charge that he was about to leave the state, or that he was a nonresident of the state. Before the sale by Sheriff H. M. Hopke of the property attached, March 15, 1899, Renfro served written notice on the sheriff, as the head of a family and resident of Missouri, demanding statutory exemptions under section 4903 of the Statutes of 1889, and also claiming, under section 4906, $300 exemptions, now sections 3159 and 3162, respectively, of the present statutes. After final judgment was rendered in the attachment suit, all of the proceeds of the sale of the property attached, except the sum of $102.71, had been ordered by the court to be disbursed by the sheriff, and at the June term, 1902, plaintiff filed a motion for an order on the former sheriff to pay over this sum remaining to him on account of his judgment, and at the same term Renfro filed a motion for an order requiring the sheriff to pay the same amount to him in recognition of his exemption rights, and the sheriff likewise filed a motion for an order authorizing him to pay such balance to Renfro on his exemption claim.

The plaintiff's motion recites that on April 1, 1902, the court adjudged that Henry M. Hopke, as late sheriff of Pike county, had in his hands the proceeds of sale of personalty attached and sold under order of court; that in such final judgment the court ordered Hopke, as such sheriff, to pay the plaintiff from said funds certain amounts towards payment of the judgment rendered in said cause, but no part of the judgment indebtedness had been paid; that there remained in the hands of said Hopke, as such sheriff, of said proceeds, the sum of $102.71, which the court omitted or failed to order said Hopke, as such sheriff, to pay over to plaintiff in such final judgment on account of his indebtedness; that the attachment in said cause had been sustained, and under the final judgment the plaintiff was entitled to said sum, and that said Hopke, as such sheriff, had said sum then on hand; and prayed for an order on said Hopke, as such sheriff, requiring him to pay such sum to plaintiff towards payment of said indebtedness.

Renfro's motion set out that at the time of the issuance and levy of the writ of attachment and the sale of the attached property he was a resident of the state of Missouri,...