Caldwell v. Ryan
| Decision Date | 27 February 1908 |
| Citation | 108 S.W. 533,210 Mo. 17 |
| Parties | ROBERT CALDWELL v. DENNIS RYAN, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed and remanded (with directions).
Wilson & Clapp for appellant.
Wattenbarger & Bingham for respondent.
If appellant's interpretation of the law be correct, the exemption statutes of this State are a delusion -- an enactment without weight or substance. The law is well settled in this State that a debtor is entitled to three hundred dollars exempt to him as the head of a family, under section 3162, Revised Statutes 1899, in addition to his household goods and other property mentioned in section 3159, Revised Statutes 1899. Bank v. Borgfeld, 93 Mo.App 62. Caldwell in his replication specifically claimed his exemptions, and the court found that he was a married man and the head of a family and entitled to claim the judgment rendered in his favor as exempt by law, and that Ryan was not entitled to have his judgment set off against that of plaintiff's. Wagner v. Furn. Co., 63 Mo.App 206. Caldwell sued for the value of his mules, the only property he possessed, and to say now that Ryan can bring in his judgment as a set-off and completely absorb Caldwell's judgment, would be nothing more nor less than a seizure of exempt property, and would at once destroy the intended benefit of the statutes to those entitled to protection under them. Caldwell v. Renfro, 73 S.W. 340; Lewis v. Gill, 76 Mo.App. 504; State to use v. Hudson, 86 Mo.App. 501; Bowen v. City of Holden, 95 Mo.App. 1.
OPINION
In Banc.
-- This is a suit to recover the value of two mules which plaintiff avers belonged to him and were unlawfully converted by defendant.
Prior to this suit, the defendant, Ryan, had brought an action of replevin against the plaintiff, Caldwell, for the possession of the mules, and having given bond according to the statute the mules were by the constable taken from Caldwell and delivered to Ryan. Pending that replevin suit Ryan caused the mules to be sold under a chattel mortgage which he held. The replevin suit resulted in a judgment in favor of Caldwell for the return of the mules, but there was no assessment of their value, hence no judgment in the alternative against Ryan for their value. When the replevin suit ended and the mules were not forthcoming to satisfy the judgment and Caldwell having no judgment therein for their value, he brought this suit to recover $ 200 as for their conversion. The defendant's answer was a general denial, and a "set-off and counterclaim," consisting of two judgments previously rendered in his favor against the plaintiff amounting with interest to $ 718.92.
Plaintiff in his reply alleged that he was the head of a family and as such was entitled to hold the judgment he was seeking to recover against the defendant exempt from execution under section 3159, Revised Statutes 1899, he having no other property, and therefore the defendant had no right to set-off his judgments against it.
The trial resulted in a judgment for the plaintiff for $ 189.70 on his demand, and in favor of defendant for $ 718.92 on his counterclaim, but it was adjudged that the defendant was not entitled to offset the judgment against him by his judgment against the plaintiff. Therefore execution was awarded in plaintiff's favor for $ 189.70 and costs, and also judgment in favor of defendant on his counterclaim, for $ 718.92 and costs, and execution awarded. From the judgment in favor of the plaintiff the defendant has appealed. The appeal was taken to the Kansas City Court of Appeals, where the judgment was affirmed, but one of the judges of that court being of the opinion that the decision was in conflict with the law as declared by this court in Garrett v. Wagner, 125 Mo. 450, 28 S.W. 762, and by the St. Louis Court of Appeals in Weinrich v. Koelling, 21 Mo.App. 133, the cause was transferred to this court.
Defendant's assignment of errors cover three points:
1. That the plaintiff having failed to have the value of the mules assessed in the replevin suit is precluded now from recovering their value in a suit for conversion.
2. That the court erred in including in the assessment of plaintiff's damages an item of $ 25 expenses he incurred in the former suit.
3. That the court erred in refusing to allow the defendant to offset his counterclaim against the plaintiff's demand.
After the judgment was rendered the plaintiff entered a remittitur as to the disputed item of $ 25, therefore that assignment is out of the case.
I. The result of the replevin suit was a judgment that the mules belonged to Caldwell, the plaintiff in this suit, and that he was entitled to the possession; the verdict should have gone further and assessed the value of the mules, and the judgment should have followed the verdict and have given Caldwell the choice to take the mules or their value. [Secs. 3921, 4473, and 4474, R. S. 1899.] But in point of fact the only thing adjudged was that they were Caldwell's mules. Defendant Ryan now thinks that because the plaintiff acquiesced in the judgment as it was he has no right to call him to account for the value of the mules wrongfully disposed of while the replevin suit was pending. The Kansas City Court of Appeals ruled that point against defendant and correctly so. The purpose of this statute was to settle in the one suit all questions that might arise out of the alleged unlawful taking or detention of the property. The assessment of the value was for the benefit of the party found to be entitled to the possession of the property and the law gave him the right to elect which he would take, the property or its value. If his choice was the property, not its money value, and if the property was forthcoming to satisfy the judgment, the assessment would be of no consequence to him. His acquiescence in a judgment for the possession when there was no assessment of value would place him in the same condition that he would have been placed by his election to take the property instead of the assessed value if there had been an assessment. Defendant relies on White v. Van Houten, 51 Mo. 577, wherein the court said: "The law surely contemplated, that when the case was prosecuted to final judgment, all questions of value, damages and costs, should be disposed of in the same proceeding." And the court held that the plaintiff in that case could not in an action on the replevin bond recover damages for the detention of the property when none had been assessed by the jury in the replevin suit. But there was a material difference between that replevin suit and the one we are now discussing; there, as here, the plaintiff had sued in replevin before a justice of the peace, had given bond and the property had been delivered to him, on the trial the judgment was against him, but there was an assessment of the value of the property, but none of damages for detention, whereupon he delivered the property to the defendant and paid the costs. The subsequent suit was on the replevin bond to recover damages for detention and it was held that the suit could not be maintained.
In the case at bar we hold that the judgment in the replevin suit was good as far as it went, that it established the right of Caldwell to the possession of the mules, and we further hold that Ryan's disposal of the mules while that suit was pending amounted to a conversion of them to his own use and he was liable to the plaintiff for their value.
II. The defendant in his answer calls his demand a "set-off and counterclaim." There is a difference between a set-off and a counterclaim, each is the creature of a separate statute. [McAdow v. Ross, 53 Mo. 199.] The law of counterclaim comes under the Code of Civil Procedure, but the statute of set-off was in our books long before the code was adopted (R. S. 1825, p. 738; R. S. 1835, p. 579) and is substantially now as it was in 1835. [Sec. 4487, R. S. 1899.] A counterclaim and set-off are different in some respects though they bear close resemblance in some other features. But there is no occasion now to discuss the points of difference and those of resemblance between a counterclaim and a set-off, because in this case both parties and the trial court construed the defendant's answer as intended to plead a set-off and that was doubtless correct. The defendant was insisting on having his debts, for which he already had two judgments, set-off against whatever judgment the plaintiff might obtain against him, while the plaintiff was insisting that the set-off should not be allowed because the judgment that he hoped to recover would, when recovered, be exempt from execution.
The plaintiff's reply to the defendant's answer, that is so much of it as stated facts intended to make out a case of exemption from execution, was foreign to the office of pleadings. Pleadings relate to the cause of action, either to support or to defeat it; they have nothing to do with the enforcement of the judgment after it is obtained. The office of the petition is to state facts constituting the cause of action, the office of the answer to deny the statements or to state other facts to avoid the cause of action, and the office of the reply is to deny the new matter in the answer or to state other facts which go to show that the plaintiff should not be precluded in his recovery by reason of the new facts stated in the answer. There is no place in the pleadings for the claim of exemption from execution, except of course where the cause of action or defense arises out of the exemption statute, as, for example, where the plaintiff...
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