Weinrich v. Koelling

• Decision Date: 23 February 1886
• Citation: 21 Mo.App. 133
• Parties: G. WEINRICH, Respondent, v. F. H. KOELLING, RECEIVER, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 133

G. WEINRICH, Respondent,

v.F. H. KOELLING, RECEIVER, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the St. Charles County Circuit Court, W. W. EDWARDS, Judge.

Affirmed.

THEO. BRUERE and T. F. MCDEARMON, for the appellant: The right of a head of a family to claim exemptions of property from seizure and sale under legal process is a personal privilege, and it can not be assigned. Osborne v. Schutt, 67 Mo. 712; Abernathy v. Whitehead, 69 Mo. 28; Terry v. Wilson, 63 Mo. 493. The head of a family can not claim exemptions out of proceeds of the property, but must claim them out of specific property, before sale, under process. Rev. Stat., sects. 2343, 2346, 2347; The State ex rel. v. Emerson, 74 Mo. 607; Casebolt v. Donaldson, 67 Mo. 308; Butt v. Green, 29 Ohio St. 667; Frost v. Shaw, 3 Id. 270; Bowman v. Smiley, 31 Pa. St. 225; Hutchinson v. Campbell, 25 Id. 273;Thompson on Homesteads & Exemptions, bottom p. 667, sect. 839, and authorities there cited.

C. DAUDT, for the respondent.

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

This is an intervening petition, filed by the plaintiff in a suit brought by John A. Koelling against Ernst H. Weinrich, for the settlement and winding up of the copartnership of Koelling & Weinrich.

Ernst H. Weinrich, being in embarrassed circumstances, fled in 1883. His co-partner, John A. Koelling, thereupon instituted the main action, and F. H. Koelling was appointed receiver of the co-partnership. He took charge of the assets and proceeded to wind up the affairs of the firm, and it stands admitted by the record that at the date of the filing of this intervening petition there was in his hands a sum exceeding three hundred dollars as individual assets of Ernst H. Weinrich, which is to be applied either in payment of the claim of George Weinrich, intervenor, or to the part payment of the claims of Ernst H. Weinrich's individual judgment creditors, as the law applicable to the facts may determine.

After Ernst H. Weinrich fled, a number of his individual creditors instituted attachment suits against him, but the record fails to disclose whether any of his property was attached in said suits, or whether any of the attaching creditors intervened, either before or after judgment, in the action pending to wind up the co-partnership of Koelling & Weinrich.

General judgments against Ernst H. Weinrich were obtained in the attachment proceedings. The date of such judgments is not shown by the record, but they were obtained, presumably, before the intervening petition, now under consideration, was filed.

In May, 1884, the fugitive, E. H. Weinrich, returned. Being indebted to his father, who is the plaintiff in this proceeding, he signed the following writings:

“I, E. H. Weinrich, being the head of a family, hereby claim in lieu of property exempt from execution, the sum of three hundred dollars.

E. H. WEINRICH.”

“Know all men by these presents that I, E. H. Weinrich, for value received from George Weinrich, do hereby assign and transfer unto said George Weinrich all my claims to property exempt from execution under the laws of the state of Missouri, and more especially my claim to property or money in the hands of F. H. Koelling, receiver of E. H. Weinrich & Bro. and Koelling & Weinrich, exempt from execution or attachment.

E. H. WEINRICH.

ST. CHARLES, Mo., May 1, 1884.”

These papers being delivered to the plaintiff, he filed his intervening petition in the main action, praying the court to make an order upon the receiver to pay him the three hundred dollars. The judgment creditors of E. H. Weinrich, as well as the receiver, resisted this petition, but the court made the order as prayed for. Hence this appeal.

Upon the trial, besides the facts hereinabove mentioned, the following facts appeared: That E. H. Weinrich was the head of a family, and in October, 1883, when he fled, owned other property, presumably exceeding three hundred dollars in value, besides his interest in the firm assets, but at the date of his making the claim of exemption, and assigning it to his father, in May, 1884, he owned no other property.

A number of instructions were asked by the receiver and the creditors, and refused by the court. The refusal of these instructions is assigned for error.

The proceeding was one incidental to the suit in equity to wind up the partnership, and raised...