State ex rel. Waggoner v. Lichtman
| Decision Date | 20 June 1914 |
| Citation | 168 S.W. 367,184 Mo.App. 225 |
| Parties | STATE ex rel. G. E. WAGGONER, Respondent, v. ADOLPH LICHTMAN et al., Appellants |
| Court | Missouri Court of Appeals |
Submitted on Briefs, June 3, 1914.
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Duncan & Bragg for appellant.
The court erred in giving instruction number two for and on behalf of the relator, over the objection and exception of appellants at the time. This instruction simply told the jury that Leichtman, Goodman & Company could not recover from Waggoner on their counterclaim unless the same was in excess of the amount of his exemptions. Conceding that relator should recover in this case, which is done only for argument's sake, appellant in that event would have the right to set off whatever amount was due them from relator. State ex rel. v. Fidelity & Guaranty Co., 135 Mo.App. 160; Caldwell v. Ryan, 210 Mo. 17.
S. H McCarty and Ward & Collins for respondents.
Appellant under this division, complains of instruction number 2. Said instruction permitted the plaintiff to hold whatever judgment he was entitled to here, as exempt, in case the jury found such property was exempt under the exemption law. That is clearly the law in this State, in an action of this sort. State ex rel. v. Hudson, 86 Mo.App. 501; Waggoner v. Furn. Co., 63 Mo.App. 206; Bowen v City, 95 Mo App. 1; Lewis v. Gill, 76 Mo.App. 504.
This is the third appearance of this case in the appellate courts, all being appeals by defendants from a judgment in favor of plaintiff, more properly relator. The first appeal being prosecuted to our court, the judgment was reversed and the cause remanded. [See State ex rel. Waggoner, Respondent, v. Lichtman-Goodman & Company et al., 131 Mo.App. 65, 109 S.W. 819.] It was again tried, and again resulting in a judgment in favor of relator, was appealed to our court. We transferred it to the Springfield Court of Appeals under what was supposed to be the law authorizing transfers. The Springfield Court of Appeals affirmed the judgment for a defect in the abstract, it not appearing that the bill of exceptions called for or contained motions for new trial or in arrest. [See State ex rel. Waggoner, Respondent, v. Leichtman et al., 146 Mo.App. 295, 130 S.W. 94.] It came back to our court under the decisions of the Supreme Court holding the act authorizing transfer invalid. After the case reached our court again, the abstract was amended by leave of court so that it now shows the fact of the filing of the motions for new trial and in arrest and that these motions are duly preserved in the bill of exceptions. It is true that this is done by reference to them as printed in the abstract of the record. While this is not strictly in compliance with the settled rule of practice in our court, we have concluded to overlook this informality. We may add, however, that the motion in arrest cannot be considered, as it was not filed within four days after the trial. [R. S. 1909, sec. 2025.]
The substantial facts in the case are set out in the opinion by Judge GOODE in 131 Mo. App., supra, and we content ourselves by referring to that opinion for them. At this second trial, however, the plaintiff, by reply, set up a claim of exemption to the goods seized, on the ground that he was the head of a family. As before, defendant set up a counterclaim against the claim of plaintiff. The verdict of the jury at the present trial was a general verdict, finding the issues for plaintiff and assessing his damages at $ 95.05. Judgment followed on this verdict.
Neither the verdict nor the judgment directly dispose of the counterclaim.
At the present trial plaintiff undertook to explain the admission which he had made at the former trial, that before the levying of the attachment here involved he had sold and assigned the goods to a third party. It must be said that the explanation is exceedingly vague and unsatisfactory and seems to turn on the point that while plaintiff had assigned the goods to a third party he had made no delivery of them. But if it was true that he had made a valid assignment but remained in possession of them, then his possession was that of the...
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