Kiskaddon v. Jones

• Decision Date: 31 October 1876
• Citation: 63 Mo. 190
• Parties: J. C. KISKADDON, ADM'R OF ESTATE OF G. G. REINIGER, DEC'D, Appellant, v. STEPHEN M. JONES, Respondent.
• Court: Missouri Supreme Court

63 Mo. 190

J. C. KISKADDON, ADM'R OF ESTATE OF G. G. REINIGER, DEC'D, Appellant,

v.STEPHEN M. JONES, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Franklin Circuit Court.

J. C. Kiskaddon, pro se, cited: Boone Co. vs. Lowry, 9 Mo. 23; Currier vs. Lowe, 32 Mo. 369; Edwards vs. Giboney, 51 Mo. 129; Huston vs. Forsyth Scale Works, 56 Mo. 416; Eddy vs. Baldwin, 32 Mo. 369; Green vs. Gallagher, 35 Mo. 226; Weaver vs. Hendrick, 30 Mo. 502; Atterbury vs. Powell, 29 Mo. 429; Nelson vs. Brodhack, 44 Mo. 596; Wagn. Stat. p. 605, § 16; Dains vs. Proper, 32 Barb. 290; Baker vs. Brintnll, 52 Barb. 188; State vs. Romer, 44 Mo. 99; Kneettle vs. Newcomb, 22 N. Y. 249; Rohr. Jud. Sales, § 1103; Helfenstein vs. Cave, 3 Iowa, 290; C. J. Waite in 1 Cent. Law Jour. 318; Weaver's Appeal, 18 Penn. St. [6 Har.] 307; Brant's Appeal, 20 Penn. St. [8 Har.] 141; Borland v. O'Neal, 22 Cal. 504; 25 Penn. St. 182; 21 Id. 210; 23 Cal. 78; Veazie vs. China, 50 Me. 518; Wendell vs. Durkin, 26 Wis. 390; Milford vs. Orono, 50 Me. 529; Martin vs. Mayor, 1 Hill, 545; Cook vs. Scott, 1 Gilman, 333; Elliott vs. Whitmore, 5 Mich. 532, 536.

Halligan, with Flanagan, for Respondent, cited: 13 Mo. 360; Corby vs. Taylor, 33 Mo. 394; Rainey vs. Edmondson, 33 Mo. 375; Wagn. Stat. §§ 9, 11, pp. 603, 604; State vs. Farmer, 21 Mo. 160; Megehe vs. Draper, 21 Mo. 510; Mahan vs. Scruggs, 29 Mo. 282; Taylor vs. Wimer, 30 Mo. 126; State vs. Romer, 44 Mo. 99; Stevenson vs. Judy, 49 Mo. 227.WAGNER, Judge, delivered the opinion of the court.

This was an action instituted against the defendant as sheriff of Franklin county, under the provisions of section 63 of the law in relation to executions, for making a false return on an execution, charging that he levied upon certain property, and then released the same without a sale, and returned the writ unsatisfied for want of property whereon to make the debt.

From the record it appears that plaintiff recovered judgment against one Frederick Dohr, for the sum of $383.87, and costs, upon which an execution was issued, directed to the defendant, who was sheriff. The plaintiff ordered the defendant to levy the execution upon a small lot of merchandise as the property of the execution debtor. The defendant proceeded to make the levy, whereupon one Johanna Dohr, the wife of the execution debtor, claimed the goods as her own property. The defendant then demanded of the plaintiff an indemnity bond, which he refused to give, on the ground that the claimant was the wife of the debtor, and directed the defendant to proceed with the sale.

The defendant set up in his answer that he made the levy upon the merchandise according to the directions of the plaintiff; that Johanna Dohr, a person other than the execution debtor, gave him notice that she claimed the property as her own, and that thereupon he informed the plaintiff of the claim, and requested him to give an indemnifying bond as the statute required, but plaintiff refused to give bond, and, in consequence thereof, the defendant released the levy.

There was a replication to the answer in which, after denying certain things set forth therein, it was averred that the claimant was the wife of the execution debtor, and this was a conceded fact throughout the whole case. The only issue raised by the pleadings was, as to whom the property levied upon belonged to, and whether the defendant was justified in releasing the levy when the plaintiff refused to execute the bond of indemnity. There was a finding and a judgment for defendant.

The evidence showed that Johanna, the claimant, was the wife of the execution debtor, and that she carried on a small store in her name. Where the money came from with which the stock was originally purchased, did not appear. Her husband was a painter and worked the most of the time in St. Louis, at his trade, but occasionally came home and staid with his family. The court refused all the declarations that the wife possessed a separate estate, which she could legally claim against her husband's creditors, and that position was really abandoned in the court below, and is not insisted upon here.

But the defendant, against the objection of the plaintiff, was permitted to prove that all the property possessed by the execution debtor or his wife, did not exceed in value one hundred and fifty dollars, and hence, it was contended that it was exempt from execution under the statute. It was upon this ground that the verdict and judgment were based. It is plain that...