Dancer v. Chenault

• Decision Date: 08 September 1975
• Docket Number: No. KCD,KCD
• Citation: 527 S.W.2d 714
• Parties: Mabel Edd DANCER, Appellant, v. C. Douglas CHENAULT et al., Respondents. 27080.
• Court: Missouri Court of Appeals

Page 714

527 S.W.2d 714

Mabel Edd DANCER, Appellant, v. C. Douglas CHENAULT et al., Respondents.

No. KCD 27080.

Missouri Court of Appeals, Kansas City District.

Sept. 8, 1975.

James L. Muller and Dennis D. Palmer, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for appellant.

Fred Bellemere, Jr., Kansas City, for respondent; Bellemere, Manford & Bellemers, Kansas City, of counsel.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

PRITCHARD, Chief Judge.

The issue is whether appellant is entitled to recover substantial damages from former constable, C. Douglas Chenault, of the 7th District Magistrate Court of Jackson County, because of his admitted failure affirmatively to apprise appellant that she was entitled to a 90% exemption upon the garnishment of her savings account in the Southeast State Bank, garnishee, as required by § 513.445, RSMo 1969.

Appellant claims that the trial court erred in awarding her (nominal) damages of $1.00 and costs, and against respondent Chenault alone, omitting to grant judgment also against his surety, State Surety Company.

On July 19, 1971, Household Finance Corporation obtained judgment against appellant, then Mable Edd and Rochester Edd for $1,291.81. Execution issued thereon on March 7, 1972, from the magistrate court. Respondent Chenault thereupon issued Notice and Summons of Garnishment to the Southeast State Bank, returnable June 5, 1972. The bank was served with the garnishment notice of summons on March 15, 1972, and it first, on the next day, filed answer to interrogatories that it was 'Unable to locate account in the name of Mable Edd Dancer.' On March 20, 1972, Household Finance's counsel wrote Southeast State Bank that it had verified the fact that appellant had an account with it in her name. The next day, March 21, 1972, respondent Chenault (by a deputy, Cassidy) issued a 'Release and Order on Garnishee' directing this: 'You are hereby ordered to pay into this court the sum of $356.96 held by you as garnishee in the above entitled cause and upon such payment you will be discharged from all liability as such garnishee.' On March 22, 1972 (the date is not clearly legible) the bank issued its cashier's check to the 'Clerk Seventh District Magistrate Court' for $356.96, and notified appellant that it had charged her account for that amount.

On March 23, 1972, appellant contacted her then counsel with respect to the instant garnishment. According to appellant, her 'Affidavit for Claim of Exemption', prepared by her counsel, was not filed, and received by respondent Chenault personally, until April 7, 1972, because she had to go out of town for a whole week or better to be with her sick mother in Arkansas. Prior to that conference, appellant had another conference on March 16, 1972, with her then counsel in regard to a garnishment of wages upon her employer, American Building Services. Her counsel advised her that as head of a family and that only 10% of her wages could be held, 'and he had it released for her.' Further, appellant first testified that her counsel advised her that her household goods would have been exempt up to $200 and that she would have the right to have other property up to the amount of $500 exempt, but she later recanted that testimony on the ground that she did not understand, and denied that her counsel told her that she could have those exemptions. It is fairly inferable from appellant's entire testimony, and the trial court must have so found, because it entered judgment for nominal damages for appellant, that at the time of the garnishment she did not have knowledge of her exemption of property up to $500.00 in value other than 90% of her wages or under § 513.440. The case relied upon by respondents, State ex rel. Bellemere v. O'Neill, et al., 78 Mo.App. 20 (1899), is not in point. (Coincidentally and historically it is interesting to note that counsel for respondents, Mr. Fred Bellemere, Jr., in this garnishment-exemption case, stated to the trial court that the parties in the garnishment-exemption case of Bellemere, supra, were his grandfather, George L. Bellemere, and his brother, John H. Bellemere.) It was in Bellemere agreed that between the time of the garnishment and rendition of judgment against the garnishee the relator (the judgment debtor) notified the sheriff of his exemption claim. The failure of the sheriff to apprise relator that he was entitled to the exemptions under the statutes was the sole stated ground for recovery, the court nothing '* * * (T)here are cases, to some of which we have been referred, where the above stated breach has been coupled with one to the effect that the officer had failed to allow and set off the exemption. If the petition in the present case had contained such an additional allegation, possibly the case would occupy a more favorable attitude before us than it does.' (78 Mo.App. 27) Here, appellant pleaded that she filed an affidavit for claim of exemption with the magistrate court (it shows that respondent Chenault also received it) on April 7, 1972, but 'defendant Chenault refused to hold such amount exempt.' Another distinguishing factor noted by the court in the Bellemere case (78 Mo.App. 26) is: 'A claim of exemption may be made with effect at any time before the money is paid out or the property sold. (Citing cases.) It is therefore obvious that relator was apprised of his exemption rights in ample time to claim the same.'

Here respondent Chenault took it upon himself to direct the Southeast State Bank to pay the $356.96 into court. § 525.410, relating to garnishments from magistrate courts provides that the garnishee may discharge himself by surrendering property, money or effects of the...