Parketon v. Pugsley
| Decision Date | 02 October 1909 |
| Citation | 121 S.W. 789,142 Mo.App. 537 |
| Parties | WILLIAM PARKETON, Respondent, v. J. B. PUGSLEY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stoddard Circuit Court.--Hon. James L. Fort, Judge.
REVERSED.
Judgment reversed.
Wammack & Welborn for appellant.
(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence, because the plaintiff failed entirely in proving the cause of action alleged in his petition. Ranning v. Railroad, 157 Mo. 477; State ex rel. v. O'Neil, 78 Mo.App. 20; Priest v. Way, 87 Mo. 16. (2) The property exceeding $ 310 in value, and there being a greater number of the articles specifically exempt, viz.: horses and cattle, than the law allowed him, it was all primarily subject to levy and became exempt only after plaintiff had selected the articles he desired to hold. Holliday v. Mausker, 44 Mo.App 469; Hombs v. Corbin, 34 Mo.App. 398; Statesbury v. Kirtland, 35 Mo.App. 154; Dayus v. Burnham, 82 Mo.App. 542; Harrington v. Smith, 14 Col. 376; Boylston v. Rankin, 114 Ala. 408; Thubault v Lemon, 39 Ore. 280, 64 P. 449. (3) Consequently, even if defendant can be said to have assisted in levying on the property, he was not guilty of any wrong. The wrong, if any was committed by the constable in not permitting plaintiff to select his exemptions when plaintiff demanded them before the sale, but for this dereliction on the part of the constable, the defendant is not liable. Davis v. Williamson, 68 Mo.App. 310. (4) This property being subject to levy, the plaintiff, before he could recover in any action, would have been compelled to show that the defendant conspired with the constable to defraud plaintiff of his exemption rights or that he accepted the proceeds of the sale, knowing plaintiff had been defrauded of his exemption rights. Davis v. Williamson, 68 Mo.App. 310. (5) And in conversion, the only action pleaded here, the burden is on the plaintiff to show that the property is exempt. And he cannot recover for conversion of exempt property upon a showing that the constable refused to permit him to select his exemptions out of property primarily subject to levy. If the property was not specifically exempt, he must show that it had been selected as exempt, and the burden is upon him to show this. Thompson, Homesteads and Exemptions, sec. 879. (6) The plaintiff was not injured by what defendant did, as is shown by the fact that the latter went to the constable and asked his exemption. The wrong was done at this time. But the defendant had nothing to do with this. He had a right to presume that, if the constable had not already protected plaintiff in his exemptions, he would do so. State v. Lord, 118 Mo. 1.
H. S. Green for respondent.
(1) No exceptions were saved to the admission or rejection of the testimony in this cause, and consequently no errors in that department of the trial can be urged in this court. Hall v. Jennings, 87 Mo.App. 627; Roe v. Bank, 167 Mo. 406; McVey v. Barker, 92 Mo.App. 498. (2) The court properly refused to give the instruction asked by defendant, because there was substantial evidence of every material fact necessary for the plaintiff to prove in order to recover in this cause, and whether such facts were proved or not was a question for the jury and not for the court. Padgitt v. Wall, 159 Mo. 143; Caris v. Nimmons, 92 Mo.App. 66; McVey v. Barker, 92 Mo.App. 498; Jackson v. Fulton, 87 Mo.App. 228. (3) The constable was a trespasser, and if the defendant encouraged him to commit the trespass, he is as guilty of wrong as the constable himself, and is liable in damages to the same extent as the constable. Wamsgamz v. Wolff, 86 Mo.App. 205.
This is a suit in conversion. Plaintiff recovered and defendant appeals. The controversy arises out of the sale of plaintiff's property by the constable under execution at the instance and request of defendant. The case proceeds upon the theory that the property levied upon and sold by the constable at the instance of defendant was exempt from execution and therefore defendant should compensate plaintiff on account of the wrong done in directing the constable to sell the same. It appears the present defendant sued the present plaintiff and recovered a judgment against him on an account for groceries. Execution was issued on this judgment and at the instance and request of the present defendant, the writ was levied by the constable upon certain personal property owned by the present plaintiff, who was defendant in the execution. The constable advertised the property levied upon, and sold the same at public vendue. The proceeds of the sale amounted to nearly six hundred dollars, which he applied to the payment of the judgment of the present defendant against plaintiff and satisfied the execution. The constable also paid off two or three small chattel mortgages outstanding against the property levied upon and sold. After paying off the chattel mortgages on the property and satisfying the execution, there remained of the proceeds of the sale less than twenty dollars in the hands of the constable. The property levied upon by the constable and sold under the execution consisted of eight horses, three log-wagons, six milch cows, and four heifers. It appears this was all of the property which the plaintiff in this action, the defendant in the execution, owned, unless it be a small amount of household goods specially exempted by the statute and not involved here. Plaintiff here and defendant in the execution, was a married man, the head of a family, and resided with the same in Stoddard county in this State. This suit is not against the constable as for a wrongful levy and sale, but instead, it is against the plaintiff in the execution, under which the sale was had. That is to say, the suit proceeds against the creditor for having pointed out the property and instructed the constable to levy upon and sell the same for the purpose of satisfying his debt.
There is no evidence whatever in the case tending to prove that the defendant conspired in any manner with the constable in order to defeat the exemption rights of the present plaintiff. On the contrary, the proof only goes to the effect that the present defendant, as plaintiff in the execution, pointed out the several head of cattle levied upon and directed the constable to levy upon and sell the same. However, a reasonable inference arises to the effect that the defendant, plaintiff in the execution, directed the constable as well to levy upon and sell the several head of horses mentioned. The constable made two visits to the home of the present plaintiff in order to levy the writ. Upon the occasion of his first visit, he levied upon the eight horses and removed them from plaintiff's premises. Not being able to locate the six milch cows and four heifers owned by the present plaintiff, who was defendant in the execution, the present defendant, plaintiff in the execution, accompanied him and pointed out the cattle. But as said there is a reasonable inference arising from the whole testimony that the present defendant directed the constable to levy upon and sell the horses as well as the cattle. The suit is not for the value of such property levied upon as is absolutely exempt from execution under our statute, but instead, proceeds upon the theory that plaintiff waived his right to the property specifically exempt and seeks a recovery as for property exempt by virtue of his selection under the provisions of our statute authorizing the execution defendant to select $ 300 worth of other property in lieu of that allowed under the first and second subdivisions of section 3159, Revised Statutes 1899. The jury awarded plaintiff a verdict of $ 300 actual and $ 150 punitive damages.
Our statute, section 3159, Revised Statutes 1899, declares a considerable amount of personal property to be exempt from attachment and execution when owned by the head of a family. Among other things therein mentioned are articles pertaining to the household, kitchen furniture, family wearing apparel, etc. With this portion of the section we are not concerned, however. The first and second subdivisions of that section are as follows: "The following property when owned by the head of a family, shall be exempt from attachment and execution: first, ten head of choice hogs, ten head of choice sheep, and the products thereof in wool, yarn or cloth; two cows and calves, two plows, one ax, one hoe and one set of plow gears, and all necessary farm implements for the use of one man; second, two work animals and feed of the value of twenty-five dollars for the stock above exempted." Another section of the statute, section 3162, Revised Statutes 1899, provides that each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of section 3159 last quoted, may select and hold exempt from execution, any other property, real, personal or mixed, or debts and wages not exceeding in value the amount of three hundred dollars. It seems plaintiff, who was defendant in the execution, did not own all the items of property mentioned in the first and second subdivisions of section 3159 quoted; therefore he preferred to select other property in lieu thereof, as authorized by the provisions of section 3162. However this may be, he made no selection of the property whatever. At the time the constable made the levy and possibly a second time before the sale was made, plaintiff said to the constable: "I demand you to set aside my exemptions. " The constable gave no heed whatever to this demand, but on the contrary proceeded with the levy, and in due time sold the property at execution...
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