State ex rel. Lewis v. Barnett

• Decision Date: 18 June 1888
• Citation: 8 S.W. 767,96 Mo. 133
• Parties: The State ex rel. Lewis v. Barnett et al., Appellants
• Court: Missouri Supreme Court

8 S.W. 767

96 Mo. 133

The State ex rel. Lewis v. Barnett et al., Appellants

Supreme Court of Missouri

June 18, 1888

Appeal from Pettis Circuit Court. -- Hon. John P. Strother, Judge.

Reversed and remanded.

Wm. S Shirk for appellants.

(1) It was error to sustain the plaintiff's motion for judgment on the answer. The answer set up a good defense to plaintiff's petition. (2) The wages were exempt, under either Revised Statutes, section 2346, or section 2519. State v. Beamer, 73 Mo. 37. (3) It was the duty of the constable to protect the exemption rights of the defendant Mitchell, both as to property levied upon and debt garnished. State ex rel. v. Barada, 57 Mo. 562; Thompson on H. and Ex. sec. 861. (4) It was not too late for Mitchell to claim his rights. He was not notified that his wages had been garnished, nor given any opportunity to claim his exemption, until after judgment had been rendered against, and the money collected from, his garnishee. He did claim his rights before the money had been applied by the constable to the execution of Lewis against him, and before it left the official custody of the constable. This was in time. State ex rel. v. Barada, supra; State ex rel. v Finn, 8 Mo.App. 261; Kulage v. Schueler, 7 Mo.App. 250; Hombs v. Corbage, 20 Mo.App. 497; State ex rel. v. Emerson, 74 Mo. 607; Buckley v Wheeler, 52 Mich. 1, and see 31 N.W. 712. (5) The garnishee could not claim Mitchell's exemption rights for him. Under the statute, no time is limited within which the debtor must claim his rights -- hence the constable must protect him up to the time the money is turned over to the execution plaintiff. State ex rel. v. Beamer, 73 Mo. 37. (6) Defendant's answer states facts which show that plaintiff's action was based on the constable's return of the execution of Lewis v. The Railway Company, garnishee of Mitchell, whereas it should have been brought upon the constable's return of the execution of Lewis v. Mitchell. Garnishment is one of the modes pointed out by the statute by which an execution is executed. Tinsley v. Savage, 50 Mo. 141. (7) Even had appellant been entitled to judgment for the one hundred dollars, he was not, on the facts stated in the answer, entitled to one hundred per cent. interest. Sections 3032 and 3033, Revised Statutes, were only intended to cover cases where constables are derelict in the performance of their duties, and does not apply to cases where the law being doubtful, he may have committed an honest error. (8) Said sections 3032 and 3033, as applicable to the facts of this case, are contrary to section 1, fourteenth amendment to the constitution of the United States, in this, they deny to defendants the equal protection of the laws. This provision of the constitution does not apply alone to the political rights of the newly-enfranchised colored race. "It does not, indeed, place any limit upon the subjects in reference to which states may legislate." County v. Railroad, 13 F. 722, 738, 740, 741; Yeck Wo v. Hopkins, 6 S.C. 1064. (9) They are contrary to section 10, article 2, of the constitution of Missouri, in this, they deny to defendants the right to appeal to the courts of the state for the adjudication of their rights, upon the same terms as other litigants, and at the risk of having heavy penalties enforced against them, in addition to those imposed upon other debtors or securities. Weller v. St. Paul, 5 Minn. 95; Wilson v. McKenna, 52 Ill. 43; Reed v. Tyler, 56 Ill. 288. (10) Said sections are contrary to section 25, article 2, of the constitution of Missouri, in that the interest therein commanded to be assessed against them, is in the nature of a penalty or fine, and is excessive and oppressive.

C. L. Jackson for respondent.

(1) Sections 3032, 3033 and 3037 are not unconstitutional. (a) They are not violative of the constitution of Missouri. Section 10 of article 2 of the constitution is designed to prevent abuse of power by the courts, and there is nothing in this statute that sanctions either a closing of the courts, or a sale or denial of justice. Section 25 of the same article has reference to criminal matters. At all events, the legislative discretion has not been abused in prescribing the one hundred per cent. interest. Cooley Const. Lim. 168-9; Munn v. Illinois, 94 U.S. 113. This statute has been enforced by the courts, without question as to its constitutionality. State ex rel. v. Muir, 24 Mo. 263; Rose v. Cobb, 64 Mo. 464; Ransom v. Cobb, 67 Mo. 375. And a similar law as to sheriffs has been enforced. State ex rel. v. Cayce, 85 Mo. 456. The acquiescence in a statute by the courts and the people is to be regarded as in favor of its constitutionality. Railroad v. County Court, 53 Mo. 156; State ex rel. v. Laughlin, 75 Mo. 147. (b) Nor is this statute in conflict with section 1 of the fourteenth amendment of the constitution of the United States. It applies equally to all persons coming within its provisions, and under the same circumstances. Phillips v. Railroad, 86 Mo. 540; Slaughter House cases, 16 Wall. 62; Barbier v. Connolly, 113 U.S. 27; Soon Hing v. Crowley, 113 U.S. 703; Humes v. Railroad, 115 U.S. 512. (2) This court will not consider any matter in the case other than the constitutionality of the statute. That question exhausts the jurisdiction of this court. Eyerman v. Blakesly, 78 Mo. 145, 152; Humes v. Railroad, 82 Mo. 221; Ins. Co. v. Hill, 86 Mo. 466. (3) Even if this court could consider any other questions, the judgment should be affirmed. Wages for the last thirty days before garnishment are different from other exemptions. They constitute matter which may be set up by the garnishee to prevent a judgment against him. R. S. sec. 2519; Mangold v. Dooley, 89 Mo. 111; Davis v. Merideth, 48 Mo. 263. After judgment rendered against the garnishee, the defendant in the original suit could not claim his exemption, if he was ever entitled to any. Randolph v. Little, 62 Ala. 396; 2 Wade on Att. sec. 395; Waples on Att. 527; Iliff v. Arnott, 31 Kas. 672. Much less could he do so after the execution against the garnishee was returned satisfied in full. The constable then held the money to the use of the plaintiff, and he had no right to divert it to any other purpose.

Sherwood, J. Ray, J., absent.

OPINION

Sherwood, J.

Action on the official bond of the defendant Barnett, as constable, his sureties being joined as co-defendants. The breach of the bond assigned in the concluding portions of the petition is as follows: "For breach of said bond plaintiff states that at the times hereinafter mentioned defendant Barnett was constable of Sedalia township as aforesaid, and plaintiff states that on the eleventh day of October, 1882, an execution in the sum of one hundred dollars ($ 100.00) in favor of said Henry Lewis, and against the Missouri Pacific Railway Company, was issued by J. R. Webber, then one of the justices of the peace of said Sedalia township, Pettis county, Missouri, and delivered to defendant Barnett as constable, as aforesaid, who afterwards returned the said execution into the office of the said J. R. Webber, justice of the peace as aforesaid, with the following return endorsed thereon: 'Executed the within execution in the county of Pettis and state of Missouri on the seventeenth day of October, 1882, by collecting of the Missouri Pacific Railway Company ($ 100.00) in full payment of this execution and return the same satisfied. R. W. Barnett, Constable of Sedalia township, Pettis county, state of Missouri.'

"Plaintiff further states that said defendant Barnett has failed and refused to pay the said sum of one hundred dollars ($ 100.00), so collected by him on said execution, over to said Henry Lewis or his attorney, although often requested so to do. Whereby plaintiff states that the said Henry Lewis has been damaged in the sum of one hundred dollars ($ 100) with one hundred per cent. per annum interest thereon from the said seventeenth day of October, 1882." Wherefore plaintiff prays judgment, etc., etc.

After certain formal admissions, the defendants answered as follows: "Defendants deny that said R. W. Barnett has committed a breach of said bond as is alleged in plaintiff's petition or otherwise. Defendants admit that on the eleventh day of October, A. D. 1882, an execution in favor of the relator Henry Lewis, and against the Missouri Pacific Railway Company for one hundred dollars, was placed in said Barnett's hands, and that on the seventeenth day of October, 1882, he returned the same fully satisfied, as is alleged in plaintiff's petition, and defendants admit that said Barnett did not nor has he paid said sum of one hundred dollars so as aforesaid collected on said execution to the relator Henry Lewis, nor ought he be compelled to do so for the following good and sufficient reasons, to-wit: That on the fourth day of August, A. D 1882, an execution in favor of the relator Henry Lewis and against one A. J. Mitchell, for the sum of one hundred dollars and costs, was placed in said Barnett's hands, as constable, for collection; that on the thirteenth day of August, said Barnett garnished the Missouri Pacific Railway Company under said execution, as the debtor of said Mitchell, and that, on the seventeenth day of August, said Mitchell having claimed said debt, being wages due him, as exempt, said garnishment was released; that on the fourteenth day of September, A. D., 1882, by order of the relator, said Barnett again summoned said railway company as garnishee of said Mitchell; that prior to the rendition of the judgment hereinafter mentioned against said railway company, said Barnett did not find said Mitchell to notify him that he had garnished his wages in the hands of said railway company and his rights in the premises, and that said...