State ex rel. Ladd v. Clark
| Decision Date | 31 August 1868 |
| Citation | 42 Mo. 519 |
| Parties | STATE OF MISSOURI, TO USE OF JACOB B. LADD, Defendant in Error, v. WILLIAM W. CLARK et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
The facts material to this case appear sufficiently in the opinion of the court.
Wm. H. Sherman, for plaintiffs in error.
I. Gen. Stat. 1865, p. 564, § 19, provides as follows: “Under an attachment the officer shall be authorized to seize as attachable property the defendant's account-books, accounts, notes, etc., * * * * * as well as his other property, real, personal, and mixed, etc., * * * but no property or wages declared by statute to be exempt from execution shall be attached, except in the case of a non-resident defendant, or a defendant who is about to move out of the State with intent to change his domicile.” If the defendant in error bases his cause of action upon the exemption made by this section of the statute, he must show in his petition every fact which will bring his cause within it. Statutes of exemption are strictly construed. (Sedg. on Stat. & Const. Law, pp. 344-6.) The exemption is the exception to the general rule of law which subjects the property of a judgment debtor to the payment of his debts, and he who claims such an exemption must affirmatively show the facts in his petition which warrant it. The petition should negative the exception contained in the clause which enacts the exemption. .) An exception in the enacting clause of a statute must be negatived by the pleader, but when the exception is in the nature of a proviso its provisions become matters for the defense. (Sedg. on Const. & St. law, 62; State v. Miller, 24 Conn. 522; 1 Chit. on Crim. Law, 284-5.)
II. In all cases where, by the law of this State, any person is authorized to prosecute a suit to his own use on any official bond, he shall sue in the name of the State or other obligee named in the bond, stating in the process, pleadings, proceedings, etc., that the same is brought in the relation and to the use of the person so suing. (Gen. Stat. 1865, p. 605, § 15.) Where a remedy is sought under a statute, all of the requirements of the statute must be contained in the petition therefor. Now, though the “title” of plaintiff's petition states that “the State of Missouri to the use of Jacob B. Ladd” is plaintiff, the petition does not by allegations therein show that plaintiff is the relator in this case, or that this case is prosecuted for his use and benefit. (State to use of Tapley's Adm'r v. Matson, 38 Mo. 489.) The allegations in plaintiff's petition seem to suggest that this cause is prosecuted more especially by and for the State than for any injured relator. The petition does not show that Ladd has any part or “hand” in the prosecution of this action.
Bennett & Pike, for defendant in error.
I. The suit is properly brought in the name of the State of Missouri, to the use of said Ladd, as plaintiff. See 35 Mo. 385, where the same objection was made and entirely disregarded by the Supreme Court.
II. It is not necessary to negative the exception in the clause upon which the action is founded, to-wit: the last part of § 19, p. 564, Gen. Stat. 1865. 1. Because the petition shows affirmatively that said Ladd was living, at the time of the seizure of said property, with his family in this county, thus in terms negativing non-residence or attempted removal from the State. 2. After words of general prohibition in a statute or clause, an exception or proviso in the statute or clause need not be negatived, but must be pleaded by the defendant. 3. Where the proviso or exception forms no part of plaintiff's title or cause of action, but merely furnishes excuse or defense for the defendant, it need not be negatived, but must be set up by the defendant. (3 Johns. 438; 4 Johns. 304.)
The only question material to be noticed in this court is the sufficiency of the petition. There can be no doubt about the justice of the judgment; and if the plaintiff's petition contains the requisite and necessary averments, the judgment should be affirmed. The action was based on an official bond, given by the defendant Clark and others, and was conditioned that Clark should faithfully perform the duties of constable of Washington township in Buchanan county.
The breaches assigned were in substance that, before and at the time of committing of the grievances by the defendant Clark, the plaintiff Ladd was the head of a family consisting of his wife and several children, and was keeping house and living with his family in the said township of Washington; that Ladd was insolvent; that all the property of every kind and description that he owned or was possessed of consisted of household and kitchen furniture, then used by him in his housekeeping, and was necessary for his family; that said household and kitchen furniture was not worth the sum of $300. Yet the said defendant Clark, well knowing that said goods and chattels were not liable to attachment, did, as constable of said township, by virtue of a writ of attachment issued by a justice of the peace, attach, levy upon, and sell, a portion of the furniture, etc. The petition then set out with sufficient particularity the goods attached, their value, the amount for which they were sold, and the damages resulting therefrom.
The attachment act declares what property the officer shall be authorized to seize as attachable, but expressly provides that no property or wages declared by statute to be exempt from execution shall be attached, except in the case of a non-resident defendant, or of a defendant who is about to move out of the State with intent to change his domicile. (Gen. Stat. 1865, p. 564, § 19.)
The statute under the title “Execution” exempts from levy and sale personal property of the value of $300 when owned by the head of a family.
It is now insisted, and it is the principal...
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Catron v. LaFayette County
...of bonds by the county court as a defense to the action, and thus at the trial had that question passed upon. State to use of Ladd v. Clark, 42 Mo. 519; Bliss on Code sec. 202; Railroad v. Otoe Co., 1 Dillon C.C. 338; R. S. 1879, sec. 663; Montgomery Co. v. Auchley, 92 Mo. 126, 92 Mo. 127, ......
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Crissey v. Morrill
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Silver v. St. Louis
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