State ex rel. Houseworth v. Dill

• Decision Date: 31 May 1875
• Citation: 60 Mo. 433
• Parties: THE STATE OF MISSOURI, TO THE USE OF MARGARET HOUSEWORTH, Respondent, v. HAMILTON DILL, JOHN L. GOMEL, CHARLES L. BIGGARS AND JOHN H. GLENN, Appellants.
• Court: Missouri Supreme Court

60 Mo. 433

THE STATE OF MISSOURI, TO THE USE OF MARGARET HOUSEWORTH, Respondent,

v.HAMILTON DILL, JOHN L. GOMEL, CHARLES L. BIGGARS AND JOHN H. GLENN, Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Holt Circuit Court.

Thomas Parrish, for Appellants.

Duff & Collins, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

The two material questions presented for consideration, by the record in this case, are, first, whether a married woman, whose husband has absconded, has, under the provisions of section fourteen of the General Statutes of 1865, in relation to Executions, the right to make the selections provided for in the eleventh section of the same act, and can maintain an action for the value of the property so selected, when it is withheld from her by the officers; and, second, whether such married woman can also maintain an action for the value of property, sold by the officer, which is exempt from execution by the terms of the ninth section.

The eleventh section is as follows: “Each head of a family, at his election, in lieu of the property mentioned in the first and second sub-divisions of the next preceding section, 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.”

Section 12. “It shall be the duty of the officers 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 provided with reference to the selection, appraisement and sale of working animals, in the thirteenth and fourteenth sections of this act.”

Section thirteen provides the manner of selecting, appraising and selling the working animals declared to be exempt by the second clause of the ninth section.

Section fourteen is as follows:

Section 14. “When the articles specified in the last preceding section shall belong to a married man and he, at the time the execution is levied or at any time before the sale under it, has absconded or absented himself from his place of abode, his wife may claim the said articles, and receive the same from the officer, and may, if the said articles are taken or withheld from her, in her own name, sue for and recover the same, or the value thereof; and in such suit shall not be required to give security for costs.”

The thirteenth and fourteenth sections appear for the first time in the Revised Statutes of 1845, and in the order observed in the General Statutes of 1865. The eleventh and twelfth sections were enacted in 1847. The plaintiff could acquire no right to make the selection provided for in the eleventh section, by reason of anything contained in the fourteenth section, as that section, by its terms, relates only to the working animals mentioned in the ““last preceding section,” that is, the thirteenth section. It is evident, however, that the legislature intended, in the enactment of the eleventh and twelfth sections to confer upon the wife, when abandoned by her husband, all the rights secured to him, by those sections....