Mills & Arnold Lumber Company v. Tanner

• Citation: 271 S.W. 831,220 Mo.App. 995
• Parties: MILLS & ARNOLD LUMBER COMPANY, DEFENDANT IN ERROR, PAUL D. HIGBEE, GARNISHEE, v. L. B. TANNER and BARBARA TANNER, PLAINTIFFS IN ERROR
• Decision Date: 04 May 1925
• Court: Kansas Court of Appeals

271 S.W. 831

220 Mo.App. 995

MILLS & ARNOLD LUMBER COMPANY, DEFENDANT IN ERROR, PAUL D. HIGBEE, GARNISHEE, v. L. B. TANNER and BARBARA TANNER, PLAINTIFFS IN ERROR

Court of Appeals of Missouri, Kansas City

May 4, 1925

Error to Circuit Court of Adair County.--Hon. J. A. Cooley, Judge.

ON MOTION BY PLAINTIFFS TO QUASH WRIT OF ERROR, MOTION SUSTAINED.

P. M Marr for plaintiffs in error.

Higbee & Mills and M. D. Campbell for defendant in error.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This controversy is before us on a writ of error to the circuit court of Adair county and the question of the sufficiency of the writ stands at the threshold of its consideration. The writ is as follows, omitting the attestation which is regular.

"THE STATE OF MISSOURI, SS:

"The State of Missouri, To the Judge of the First Judicial Circuit in said State, GREETING: Whereas, in the record and proceedings in a certain cause lately pending in the Adair Circuit Court wherein The Mills & Arnold Lumber Company was plaintiff and L. B. Tanner and Barbara Tanner were defendants, Paul D. Higbee, Garnishee, in a civil action manifest error hath intervened to the great damage of the said L. B. Tanner and Barbara Tanner as by their complain, we are informed.

"Now, We being willing that the error, if any there be, should be corrected, and full and speedy justice done to the parties aforesaid, in that behalf command you, that you send to us, certified under your seal, the record and proceedings in the cause aforesaid, as fully as the same remain of record before you in said court, so that we may have them before us at our Kansas City Court of Appeals, to be begun and held at the City of Kansas, in the County of Jackson, in said State, on the first Monday in October next, so that our Judges of our Kansas City Court of Appeals, on inspecting the record and proceedings aforesaid, may cause to be further done therein, for correcting the error, what of right and according to law ought to be done, and have you then and there this writ."

The transcript which constitutes the return to this writ is entitled:

Mills & Arnold Lumber Co., Plaintiff, v. L. B. Tanner and Barbara Tanner, Defendants.

# 16696

Judgment on motion to allow exemption of B. Tanner.

The facts leading up to the controversy are as follows:

In June, 1921, L. B. Tanner and Barbara Tanner, husband and wife, owned as an estate in the entirety a farm of ninety-four acres near Kirksville, Adair county, Missouri, upon which they lived. It appears from appellant's abstract that in June, 1921, suit was instituted against plaintiffs in error on five promissory notes executed by Tanner and his wife on an account for lumber used in the construction of a dwelling house on the said farm. It also appears from said abstract that in the spring of 1921, the Tanners agreed to a separation and on June 20, 1921, they executed a warranty deed to the farm including therein all of their personal property, to Ira Linder and Mattie Linder, the consideration named therein being $ 16,500. At the time of the execution of this deed there was a first deed of trust against the land for $ 5,000, and a second for $ 1,000, held by the Bank of Kirksville, in which Paul D. Higbee was named as trustee.

On June 22, 1921, the Mills & Arnold Lumber Co. instituted a suit against the Tanners upon an open account for lumber, in the sum of $ 4217.70. Joined with this were four counts based upon four promissory notes, aggregating $ 3,000, which the Tanners had previously executed to the National Bank of Kirksville, and which were assigned to the Mills & Arnold Lumber Company on June 22, 1921. At the time the suit was filed, defendants in error attached the ninety-four acres of land and all the personal property of the Tanners, the writ and summons being made returnable at the October (1921) term of the court.

On August 4, 1921, Linder and his wife, by warranty deed, reconveyed to Tanner and wife the said land and personal property, the consideration named therein being $ 16,500.

In the meantime the note for $ 1,000 secured by the second deed of trust, held by the Bank of Kirksville, was ordered foreclosed. At the foreclosure sale on August 5, 1921, the farm was purchased by P. C. Mills of Kirksville for $ 9300 plus the interest due on the first deed of trust of $ 5,000. The sum for which the land was sold was approximately $ 3300 in excess of the two deeds of trust.

On the day of the foreclosure sale, L. B. Tanner served upon P. C. Mills and Paul D. Higbee, trustee, a written claim and demand for homestead exemption in the sum of $ 1500. These demands were refused. After the foreclosure sale, the surplus of $ 3300 in the hands of Higbee, trustee, was garnished by the Mills & Arnold Lumber Co. On application of defendants in error and pursuant to an order of the court granted September 1, 1921, the personal property was sold at public auction for approximately the sum of $ 900.

Pleas in abatement to the attachment were filed by plaintiffs in error, setting up and claiming the personal property and homestead exemptions, and on February 6, 1922, the issues thereon were tried to a jury, the court directing a verdict in favor of defendant in error, the Mills & Arnold Lumber Co., and a judgment sustaining the attachment was rendered. Motion for new trial was duly filed and one year later, February 2, 1923, was overruled. On the same day plaintiffs in error filed separate replies to the answer of Paul D. Higbee, garnishee, claiming the homestead exemption out of the funds in his hands. Also, on February 2, 1923, L. B. Tanner filed separate claim for personal exemption of $ 3,000, and on the same day defendant in error was given judgment for the sum of $ 7650.98. This case was not appealed.

The question of exemption was heard by the...