State ex rel. Valentine & Co. v. Thomas

• Decision Date: 13 May 1879
• Citation: 7 Mo.App. 205
• Parties: STATE OF MISSOURI, TO THE USE OF VALENTINE & CO., Plaintiff in Error, v. EMILE THOMAS ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

7 Mo.App. 205

STATE OF MISSOURI, TO THE USE OF VALENTINE & CO., Plaintiff in Error,

v.EMILE THOMAS ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

May 13, 1879.

1. Partnership creditors have no lien, as such, upon partnership property for the payment of partnership debts.

2. A partner who has purchased and become sole owner of goods which were before partnership property, is entitled to exemption in the goods, though at the time the debt sued for was contracted they were partnership property.

3. Where goods seized under execution are claimed by a third party, and an exemption claim is made by the defendant, the fact that the plaintiff has given an indemnifying bond against the claim of the third party imposes no duty upon the sheriff to withhold the goods from the defendant to await the determination of the question as to the validity of the third party's claim.

ERROR to St. Louis Circuit Court.

Affirmed.

E. W. CROZIER, for plaintiff in error: The sheriff should have retained the property until the claimants' respective rights were determined.-- Howard v. Clark, 43 Mo. 344; Bradley v. Holloway, 28 Mo. 150; The State v. Farber, 37 Mo. 71. The property was partnership property, and not subject to exemption.-- Massey v. Scott, 49 Mo. 278; Sheedy v. Bank, 62 Mo. 22; Perry v. Wilson, 63 Mo. 493.

FINKELNBURG & RASSIEUR, for defendants in error: While the partnership exists, the creditors have no equity or lien at all.--Story on Part., sect. 358. And if, upon a dissolution, the assets are transferred to one of the partners, they become his individual property, free from any lien or equity of the joint creditors.--Story on Part., sects. 358, 359; Ex parte Ruffin, 6 Ves. 119; City of Magnoketa v. Willey, 35 Iowa, 330; Giddings v. Palmer, 107 Mass. 269; Allen v. Centre Valley Co., 21 Conn. 130; Pars. on Part. *346, note g.

BAKEWELL, J., delivered the opinion of the court.

This is an action against the sheriff and the sureties on his official bond, for damages for an illegal release of property seized by attachment. The judgment below was for the defendants. The case has been carefully argued, both orally and in writing, by counsel for the plaintiff in error; he has, however, omitted to file a statement of the case. The record has been laudably abridged by stipulation. It seems to contain all facts essential for a determination of the cause. They are substantially as follows:--

Valentine & Brothers sued John S. and Henry Knox by attachment, on March 7, 1877, and seized all the property in their store. There was service on John Knox; Henry Knox was not found, and the action was dismissed as to him. The appraised value of the property thus seized was $592. One Prickett claimed a portion of these goods, of the appraised value of $323. His claim was as trustee of a deed of trust to secure a note for $780. This deed was executed on December 13, 1876, by John and Henry Knox. The plaintiffs gave to the sheriff an indemnifying bond against this claim of Prickett. On the next day, John Knox, the only defendant served, filed a written claim with the sheriff, in which he states that the firm of Knox Brothers, composed of the defendants in the attachment, was dissolved on January 1, 1877, and notice duly published of the fact; that Henry Knox never had any real interest in the firm, being a mere clerk of his nominal partner, John Knox; that the claimant is the absolute and sole owner of all the property levied upon, except that part included in deeds of trust, which he owns subject to the debts so secured; that the claimant is the head of a family; that he chooses and claims as exempt all the property levied upon not included in the deeds of trust, the one under which the claim was made and another in favor of Lambert; and also claims, as against the plaintiffs in the attachment, exemption in all the property levied upon and mentioned in the deeds of trust, after the amounts secured by the deeds are paid. Under this claim the sheriff returned property of the appraised value of $400 to the claimant. Other property appraised at $75 was returned to another claimant by the direction of the plaintiffs. The sheriff retained in his hands property to the appraised value of $80, claimed by Prickett; and the plaintiffs withdrew the bond filed by them for double the amount of Prickett's claim, and substituted a bond for $160, double the value of the property actually remaining in the sheriff's hands. There was a finding and judgment for the plaintiffs, and they bring the cause here by writ of error.

It is not necessary to set out the instructions. The facts are not disputed. Those stated in the affidavit of the claimant form, by stipulation, a part of the facts submitted to the court. The sheriff took the goods from the sole possession of the defendant John Knox; and he had...