State ex rel. Billingsley v. Spencer

• Decision Date: 30 April 1877
• Citation: 64 Mo. 355
• Parties: STATE ex rel. R. L. BILLINGSLEY, et al., Appellants, v. CLINTON E. SPENCER, et al., Respondents.
• Court: Missouri Supreme Court

64 Mo. 355

STATE ex rel. R. L. BILLINGSLEY, et al., Appellants,

v.CLINTON E. SPENCER, et al., Respondents.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jasper County Circuit Court.

E. J. Montague, for Appellants, cited: Pond vs. Kimball, 101 Mass. 105; Guptel vs. McFee et al., 9 Kan. 30; Cent. L. J. No. 17, April 23, 1875, 264; Wagn. Stat. 603, § 9.

W. H. Phelps, for Respondents, cited: Stewart vs. Brown, 37 N. Y. 350; Knapp vs. Bartlett, 23 Wis. 88; Gilman vs. Williams, 7 Wis. 287; Kiskaddon vs. Jones, 63 Mo. 190.

HENRY, Judge, delivered the opinion of the court.

In September, 1874, R. L. Billingsley & Co. commenced a suit by attachment against ______ Kent and ______Black, and said attachment was, by defendant Spencer, then sheriff of Jasper county, levied upon personal property belonging to Kent and Black as partners. Kent and Black each were the head of a family, and neither of them owned any property mentioned in the first and second subdivisions of the ninth section, of chapter 55, Wagn. Stat. 603. Kent had household goods of the value of three hundred dollars, and Black had household goods of the value of one hundred and twenty-five dollars, and a set of carpenter's tools worth about thirty-five dollars. The partnership goods levied upon by the sheriff were of the value of one hundred and fifty dollars. Defendants, Kent and Black, claimed the property under the eleventh section of chapter 55, which provides that “each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of section nine, may select and hold exempt from execution any other property real, personal or mixed, or debts and wages, not exceeding in value three hundred dollars.”

The sheriff allowed their claims, and returned to them the property he had attached. Billingsley & Co. prosecuted their said suit, and at the May term, 1873, of the common pleas court of Jasper county, recovered a judgment against Kent and Black for $105.50. Afterwards a special execution was issued on said judgment and placed in the hands of the sheriff of Jasper county, one Zane, who duly returned thereon that he could not find the attached property, and the present suit was instituted against Spencer, and the other defendants, his sureties on his official bond, to recover for the alleged breach of duty on the part of Spencer, in delivering to Kent and Black the attached property.

There was a trial in the common pleas court of Jasper county, which resulted in a verdict and judgment for defendant, from which an appeal has been duly taken by plaintiff to this court, and the only question presented for determination is whether one or more of the members of a partnership, are severally or all of them jointly entitled to partnership assets, to the amount specified in section eleven as exempt from execution under sections nine and eleven?

They cannot claim the exemption as a partnership, for a partnership cannot be the head of a family. If they can severally claim, how is the officer to determine what specific portion of the assets belongs to the claimant, without first making a settlement of the partnership...