White v. Smith

• Decision Date: 04 January 1904
• Citation: 78 S.W. 51,104 Mo. App. 199
• Court: Missouri Court of Appeals
• Parties: WHITE v. SMITH et al.

78 S.W. 51

104 Mo. App. 199

WHITE v. SMITH et al.

Court of Appeals at Kansas City, Missouri.

January 4, 1904.

MARRIED WOMEN—EXEMPTIONS.

1. Under the express provisions of Rev. St. 1899, § 4335, a married woman may claim all exemptions given to the head of a family,

though her husband may be such head, except where he has claimed the exemptions for the protection of his own property.

Appeal from Circuit Court, Cole County.

Action by E. C. White against George A. Smith and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Barnett & Barnett, for appellant. Silver & Brown, for respondents.

BROADDUS, J.

This is a suit against defendant Smith and his securities on his bond as constable. The case was begun in a justice's court, and was tried on appeal in the circuit court, where defendants prevailed, and plaintiff appealed. The facts were that plaintiff had obtained a judgment before a justice against one R. H. McKay and his wife for $41.98, and that one Peasner, as executor of a certain estate, held in his hands the sum of $50, which was a part of the wife's distributable share in said estate, and that execution was issued against the husband and wife and said Peasner was summoned as garnishee, who, upon interrogatories being filed, answered that he was owing said sum to the wife, and paid the same to the constable, taking his receipt therefor. The wife gave notice to the constable that she claimed the money in his hands as exempt under section 4335, Rev. St. 1899. The constable, after some hesitation, paid her the money. The plaintiff claims that in so doing he committed a breach of his bond. The evidence tends to show that this was all the property owned by the wife, except certain other funds in the hands of said executor, upon which she had created a lien. It was proved that McKay, the husband and head of the family, made no claim of exemption in his own behalf. It is contended by plaintiff that, as she lived with her husband, and was being supported by him, she was not the head of a family, and therefore not entitled to the exemptions provided by the statute. In Gladney v. Berkley, 75 Mo. App. 98, the court held that: "As between husband and wife, there can be but one homestead right, and that, in the absence of a statute, this right must be asserted in the name of the husband, because so long as the marriage relation exists de jure he must be regarded as the head of the family within the meaning of the statute." The...