Furlong v. Thomssen

• Decision Date: 10 November 1885
• Citation: 19 Mo.App. 364
• Parties: T. J. FURLONG, Respondent, v. EDWARD THOMSSEN, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 364

T. J. FURLONG, Respondent,

v.EDWARD THOMSSEN, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 10, 1885.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

B. SCHNURMACHER, for the appellant: The defendant's claim for exemptions may be made at the trial, or at any time before the sale. The State v. Emerson, 74 Mo. 607; The State v. Farrell, 6 Mo. App. 581; Hirshizer v. Tinsley, 13 Mo. App. 489; Wallace v. Lawyer, 54 Ind. 509.

JAMES TAUSSIG and CHARLES S. TAUSSIG, for the respondent: Where a person or corporation not subject to garnishment is indebted to an insolvent person, a bill in equity will lie to aid a creditor of such insolvent in appropriating the credit to the satisfaction of his demand. Pendleton v. Perkins, 49 Mo. 565; Luthy v. Woods, 1 Mo. App. 167; Beal v. McVicker, 3 Mo. App. 562. Thomssen is not entitled to have three hundred dollars set aside to him under the exemption laws. No such claim was set up by his answer. By attempting to assign the fund, claimed as exempt, to other creditors, he waived his exemption rights to that fund, even though the assignments were ineffectual. Boyer's App., 21 Pa. St. 210; Shelly's App., 36 Pa. St. 373; Lauck's App., 44 Pa. St. 395. In Missouri, a debtor may waive his exemption. Osborne v. Schutt, 67 Mo. 712.

THOMPSON, J., delivered the opinion of the court.

The plaintiff, being a judgment creditor of the defendant, Thomssen, and being unable to obtain satisfaction by ordinary process of execution, brought this suit in the nature of creditor's bill against Thomssen and the city of St. Louis, alleging that the city was indebted to Thomssen in a large sum, by reason of a certain contract between Thomssen and the city, whereby Thomssen had engaged to erect an engine house for the city, and praying that satisfaction of his judgment and costs be decreed out of the moneys in the hands of the city owing to Thomssen. Thomssen and the city filed separate answers, each being a general denial. At the trial, the city admitted that it was indebted to Thomssen at the time of the bringing of this suit, and also at the time of the trial, in a sum in excess of $500, and Thomssen testified that the city was indebted to him at the trial in the sum of $590. It also appeared that, since the service of process in the suit upon the city and upon Thomssen, the city had paid to Thomssen, at various times, the aggregate amount of $3,848.

At the trial, Thomssen testified that he was the head of a family, keeping house in St. Louis, and he was permitted, against the objection of the plaintiff, to state that he claimed three hundred dollars of the money still in the city's hands and due him, as an exemption under the statute.

Thomssen also gave evidence to the effect that since the bringing of this suit he had given orders on the city treasurer to sub-contractors, as follows, which orders are still outstanding: In favor of Em. Wachter, two hundred dollars; in favor of Henry Witler, one hundred and thirty-five dollars; in favor of Drey & Kahn, one hundred and thirty-four dollars; in favor of H. Etzel, two hundred dollars; making a total sum of six hundred and sixty-nine dollars, being an amount in excess of the amount due him from the city at the time of the trial. The testimony of both parties showed that the city refused to recognize these assignments.

Upon this basis the court rendered a decree for the plaintiff, that the city pay him the sum of $429.96, together with the costs of this suit. The defendant, Thomssen, filed a motion for a new trial, one of the grounds being that the court erred in failing to adjudge and set apart his exemption in the fund in controversy. He also filed a motion to modify the decree so as to make it show upon its face that the court did not intend to deprive the defendant of his exemption rights, and to appropriate to the satisfaction of the plaintiff's demand so much of the moneys in the hands of the city as were exempt to the defendant, etc.

These motions were overruled, and the defendant, Thomssen, has alone appealed.

The plaintiff has resorted to a well...