State ex rel. Garrett v. Farmer

• Decision Date: 31 March 1855
• Citation: 21 Mo. 160
• Parties: STATE, TO THE USE OF GARRETT, Plaintiff in Error, v. FARMER, Defendant in Error.
• Court: Missouri Supreme Court

21 Mo. 160

STATE, TO THE USE OF GARRETT, Plaintiff in Error,

v.FARMER, Defendant in Error.

Supreme Court of Missouri.

March Term, 1855.

1. Under the first section of the amendatory act of 1847, concerning executions, every head of a family may hold property to the amount of $150 exempt from execution, whether he owns any of the property mentioned in the first and seventh subdivisions of the eleventh section of the act of 1845 or not.

2. The securities in a constable's bond are liable for his trespass in seizing property exempt from execution. (State v. Moore, 19 Mo. Rep. affirmed.)

Error to St. Louis Court of Common Pleas.

The case is stated in the opinion of the court.

Delafield & Kribben, for plaintiff in error.

RYLAND, Judge, delivered the opinion of the court.

This was an action by The State, to the use of Garrett, against Farmer and others, his securities, on his bond as constable of St. Ferdinand township, in St. Louis county. The petition alleges that Garrett was the head of a family, he having a wife and children; that he was the owner of about twelve acres of corn in the field, and about one acre of potatoes in the ground, and some small quantity of furniture; that the said Farmer, as constable, levied an attachment on this corn and potatoes, and sold the same for about sixty dollars; that the said Farmer did not apprise the petitioner, Garrett, of his right to select this property as the head of a family; that Garrett demanded of Farmer the appraisement of the property, and claimed it as being exempted from execution.

The petition is immoderately long, and requires some attention to its verboseness, before we can make out that there is a cause of action set out in it at all; but it is our opinion that there is substantially a cause of action set out.

The defendants demur to the petition, and the court sustains the demurrer. The plaintiff brings the case here by writ of error.

1. In looking over the whole record carefully, we find that the case involves the construction of the act of our legislature passed in 1846-7, amendatory of the act of 1845, concerning executions. This act of 1847, section 1st, declares that “Each head of a family, at his election, in lieu of the property mentioned in the first and second subdivisions of the eleventh section of an act, entitled: ‘An act to regulate executions,’ approved March 26th, 1845, may select and hold exempt from execution any other property, real, personal or mixed, not exceeding in value the amount of one hundred and fifty dollars.” “Sec. 2. It shall be the duty of the officer to apprise such person of his right to make such selection, and the same proceedings as to the selection, appraisement and sale of such property shall be had as are provided with reference to the selection, appraisement and sale of working animals in the 12th and 13th sections of the act of 1845.”

The 11th section of the act of 1845, with its two subdivisions mentioned, to-wit: first and second, is as follows:

“Sec. 11. The following property, when owned by the head of a family, shall be exempt from levy and...