State ex rel. Conklin v. Barada

• Decision Date: 31 October 1874
• Citation: 57 Mo. 562
• Parties: STATE OF MISSOURI, to use of L. M. CONKLIN, Respondent, v. LEWIS S. BARADA, et al., Appellants.
• Court: Missouri Supreme Court

57 Mo. 562

STATE OF MISSOURI, to use of L. M. CONKLIN, Respondent,

v.LEWIS S. BARADA, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Audrain Circuit Court.

G. B. Macfarlane, for Appellants.

I. The term property as used in §§ 11 and 12, of the chapter on executions does not include debts and wages, and the constable was not required to have Ladd's debt to Conklin appraised, as in appraisement of working animals. (§§ 11 and 12, p. 604; Gregory vs. Evans, 19 Mo., 261.) Debts and wages are not subject to execution except by process of garnishment. (§ 16, p. 605; § 2, p. 606, Wagn. Stat.) Mahan vs. Scruggs, 29 Mo., 282, is not in point.

S. A. Craddock & M. S. Hollister, for Respondent.

I. Conklin claimed, as the head of a family, the Ladd debt, in lieu of the property mentioned in the 1st and 2nd sub-divisions of sec. 9 of the chapter on executions, and when he notified the constable that he selected and held it as exempt from execution and garnishment, it was the duty of the constable to set it off to him, and the constable's refusal to do so was wrongful and contrary to the statute. (Wagn. Stat., p. 603-4, §§ 9, 11, 12; Mahan vs. Scruggs, 29 Mo., 282; State vs. Romer, 44 Mo., 99; Garret vs. Farmer, 21 Mo., 160.) The 11th and 12th sections of the chapter on executions most clearly include debts and wages. No other construction can be possibly placed upon them. Any other construction would be contrary to the plain declaration of the statute and contrary to the opinions of this court. (Mahan vs. Scruggs, 29 Mo., 282.)

LEWIS, Judge, delivered the opinion of the court.

This was a suit upon a constable's bond. William L. Grim obtained judgment before a justice of the peace, against respondent's usee, Conklin, for $140. The appellant Barada, as constable, upon execution coming to his hands, garnished Amos Ladd, who was indebted to Conklin on a promissory note for $100. It is charged that the officer failed to apprise Conklin of his rights, as required by the statute; that Conklin, nevertheless, repeatedly notified Barada, before the return of the garnishment, that, as head of a family and owning no other property, he claimed to hold the Ladd note exempt from execution. That the constable disregarded his claim and merely referred him to the justice.

The garnishee failed to answer, and judgment was rendered against him in favor of the execution plaintiff for the amount of the note and interest, whereby the same was lost to Conklin.

The answer after denying generally the derelictions alleged, set up several special defenses, some of which were stricken out on respondent's motion. The case was tried before a jury who found for the plaintiff in the amount of the garnished debt and interest.

No doubt appears to have been entertained at any stage of the proceedings, that the debtor was entitled under section 11, on page 604 of Wagner's Statutes, to hold exempt from execution the debt due from Ladd. The controversy turns upon the inquiry, what is the method by which, in a case like this, the execution debtor must make his statutory right available? By the respondent it is held to be sufficient that he make his claim to the officer, whose duty it then becomes to take such steps under the 12th and 13th sections, as will secure to the debtor his demand against the garnishee, within the proper limit of value. The appellants insist that no such duty belongs to the officer; that he is required by law to serve and return the garnishment process at all events; and that the debtor must proceed before the justice, by interplea or otherwise, to establish his right.

While the statute is sufficiently clear upon the course to be followed when articles of personal property are in question, it gives no specific direction for the case of a debt garnished and claimed by the defendant. Nor have we any better guide in former adjudications of this court. In Gregory vs. Evans, (19 Mo., 261,) the execution debtor reserved his claim of exemption for a garnished debt to be passed upon by the justice in the trial of the garnishment. The justice sustained him, giving judgment against the plaintiff in execution, although the garnishee acknowledged indebtedness to the defendant. On appeal the Circuit Court did the same thing. The Supreme Court reversed the judgment on other grounds, making no allusion to the regularity of the initial proceeding. In Mahan vs. Scruggs, (29 Mo., 282,) the constable responded to the defendant's demand by allowing him the debt garnished. The plaintiff in execution thereupon sued the constable for breach of duty, and the case turned upon the question whether the defendant was entitled to the exemption in any shape. Again no reference was made to the propriety of the course adopted by the debtor; and thus either of the antagonistic methods here suggested would appear to have had a judicial toleration. The exigencies of the present inquiry demand an interpretation of the statute which shall discover the true rule for its practical enforcement.

The court below instructed the jury that, “it was the imperative duty of the defendant, made so by the law of executions, to have had the plaintiff's property appraised by three disinterested householders of the neighborhood, to ascertain if the plaintiff, Conklin, was entitled to have this Ladd note set off to him; and if the jury find from the evidence, that defendant Barada, as constable, failed or neglected to have plaintiff's property so appraised, then the jury will find for the plaintiff.”

This instruction was not authorized by the language of the statute. Certain specific exemptions having been provided for, the 11th section permits the head of a family, in lieu of them, to “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.” Here are two classes of objects, one of them being “property,” of three several kinds, and the other “debts and wages.” The...