Linck v. Troll

BLAND, P. J. On July 26, 1895, Annie Mahner commenced a suit by attachment in the St. Louis Circuit Oourt against Edward O. Linck and wife. . One of the grounds set forth in Mrs. Mahner’s affidavit for attachment, was that “Edward O. Linck is about to remove out of the state of Missouri -with the intent to change his domicile.” A writ of attachment was issued and delivered to the sheriff, by virtue of which be levied upon a lot of wall paper, oil-cloth, etc., found in Linck’s store in the city of St. Louis. The attached property, being of a perishable nature, the court ordered its sale by the sheriff before the return day of the attachment writ. By the sale the sheriff realized $1,272.16, and duly made return of the order of sale to the court. Linck filed a plea in abatement to the affidavit of attachment. The issues on this plea were tried by a jury, who returned a general verdict sustaining the attachment. Linck defended the suit on its merits, but lost here also, and a judgment for $989.10 was recovered against him. Erom the judgment sustaining the attachment and on the merits he appealed to this court, giving an appeal bond in the sum of $100, the amount fixed by the court to cover costs. The appeal bond contained the statutory conditions prescribed by section 2249, Eevised Statutes 1889, for appeal bonds. The trial judge designated the bond as a bond to cover the costs of the appeal, granted no supersedeas, but on motion of Mrs. Mahner’s attorney ordered the sheriff to pay her or her attorney the full amount of the judgment ($989.10) out of the proceeds arising from the sale of the attached property. The sheriff in obedience to this order paid Mrs. Mahner’s attorney the full amount of her judgment and applied balance of proceeds of sale to payment of — 54 — costs. This court at its March term, 1897, reversed the judgment of the trial court on Linck’s plea in abatement and remanded the cause (Mahner v. Linck, 70 Mo. App. 380). On a retrial of the plea in abatement the judge withdrew from the consideration of the jury all of the grounds set forth in the affidavit of Mrs. Mahner, but one, to wit, that of fraudulent concealment, removing or disposing of his property, so as to hinder and delay his creditors. The verdict on this ground was found for plaintiff Mahner. No appeal was taken. Linck was a married man and the head of a family, and was apprised of his exemption rights by the sheriff making the levy, whereupon he claimed $300 of the proceeds of the sale of the property; the sheriff refused to allow or to pay the claimed exemption, giving as an excuse therefor that the affidavit for attachment alleged that he (Linck) was about to remove out of the state with intent to change his domicile. Linck brought this suit against the sheriff on his official bond, alleging that the sheriff had wrongfully deprived him of his exemption rights. The sheriff by his answer justified his action by the order of the trial court directing him to pay over the money to Mrs. Mahner. The issues were submitted to the court, sitting as a jury, who found for the defendant. Plaintiff Linck duly appealed. I. The contention of appellant is, that the appeal taken by him in the Mahner suit and the giving of an appeal bond in the penal sum of $100, acted as a supersedeas of the judgment, and that the order of the circuit court to pay the money to Mrs. Mahner was without authority and void. The correctness of this contention depends upon a proper construction of section 562, Revised Statutes of 1889, as amended by Acts of 1891 (Sess. Acts 1891, page 45). That section is amended, after providing when and from what an appeal may be taken, further provides that “either party — 55 — giving suoli bond for that purpose as the court may require; and any such appeal shall operate as a supersedeas of the judgment or judgments appealed from.” The bond given in this case was such an one as the court required and operated as a supersedeas of both judgments, the one on the plea in abatement and the one on the merits. Section 2249, Revised Statutes 1889, which requires an appeal bond to be for at least double the amount of the judgment appealed from to authorize the court to make an order of supersedeas, has no application to appeals from judgments in attachment suits. Attachments are special and extraordinary proceedings, and the procedure is governed by the attachment act. When, as in this case, ample security for the judgment appealed from was in the custody of the court in the form of cash, there would be.no reason to require the appellant to give bond in double the amount of the judgment, and our legislature wisely clothed the trial court with power to fix the amount of the bond, and the Act of 1891 does not require an appeal bond in double the amount of the judgment appealed from, as does the general practice act, nor does it require the court to make an order staying the execution of the judgment as in ordinary cases, but declares that where the bond is given, it shall operate as a supersedeas. When, therefore, the bond was filed and approved, it proprio vigore superseded both judgments, the one on the plea in abatement, and the one on the merits, and the court was without jurisdiction to enforce the collection of the judgment by its order on the sheriff to pay over the money to Mrs. Mahner. Burgess v. O’Donoghue, 90 Mo. 299; Oberkroetter v. Luebbering, 4 Mo. App. 481; Adams v. Railroad, 18 Mo. App. 373; State ex rel. v. Dillon, 98 Mo. 90. The court being without jurisdiction to make the order to pay, the sheriff is supposed to have known it, and he can not justify his action by pleading this void order. Town of Warrensburg v. — 56 — Miller, 77 Mo. 56; Wooldridge v. Rentschler, 62 Mo. App. 591; St. L. & S. F. Ry. Co. v. Lowder, 138 Mo. loc. cit. 536. II. Because the affidavit alleged as one of the grounds of attachment, that Linck was about to remove from this state with intent to change his domicile, the sheriff was justified • in denying him the statutory exemptions. His right to claim and receive $300 worth of personal property as exempt depended on an adjudication in the cause to the effect that the above ground for the attachment was untrue, and until such an adjudication was made in his. favor the sheriff could not allow the claim. When his right of exemption Avas established and became knoAvn to the sheriff the attached property had been converted into money by order of the court, and the money was thereafter held by the sheriff as receiver, subject to the order of the court. Sec. 548 and 550, R. S. 1889; Young v. Kellor, 94 Mo. loc. cit 592, 593; Nelson Distilling Company v. Hubbard, 53 Mo. App. loc. cit. 30. It was therefore not- within the power of the sheriff to allow and pay the exemption out of the proceeds of the sale, Avithout an order of the court directing him so to do. But appellant contends that Linck could not make an application to the court for his exemption; that the 'court had no authority under the statute to set off the exemption. The statute concerning exemptions, makes it the duty of the officer making a levy on execution or attachment, to apprise the defendant of the exemption rights, and in a proper case to set off to the defendant such property as is by laAV exempt. If he fails to do his duty in this regard and the defendant is damaged thereby, his remedy is against the officer on his official bond and not by appeal or by motion to the court from Avhich the writ issued. But where, as in this case, property or funds out of which a defendant is entitled to the statutory exemptions comes into the custody — 57 — and control of a court, before tbe officer, except at Ms own risk, could set apart tbe exempt property, where else is it possible for him to apply for his exemption but to the authority which has the possession and control of its proceeds? In Marchilden v. O’Hara, 52 Mo. App. loc. cit. 526, 527, it was held by this court that a defendant could appear in court and claim as exempt from execution, money which had been paid into court by his garnishee. Of necessity the law can not be otherwise. Appellant further contends that if the claim could have been made to the court, then as he had notified tbe sheriff of his claim it was the duty of that, officer to make the claim for Mm to the court. The appellant, to avail himself of his statutory right of exemption, was bound to make the claim when the levy was made by the officer, or at the very latest, on the day of but before the sale was made. Garrett v. Wagner, 125 Mo. 450; Osborne v. Schutt, 67 Mo. 712; Weinrich v. Koelling, 21 Mo. App. 133; Stotesbury v. Kirtland, 35 Mo. App. 148; Alt v. Bank, 9 Mo. App. 98; State ex rel. v. Emerson, 74 Mo. 607; Drake on Attachment, sec. 244a. Appellant made Ms claim to the officer in due time, but at a time when, on account of the allegation in the affidavit for the attachment, that plaintiff was about to remove out of the state with intent to change his domicile, the officer could not recognize the claim. Sec. 384, R. S. 1899; The State to use, Schnerr v. Laies, 46 Mo. 108; Stein v. Burnett, 43 Mo. App. 477. To have done so would have placed the officer in the attitude of defending against one of the alleged grounds for the attachment, and of assuming the risk of the issue to be made thereon to the extent of the statutory exemption of $300. The statutes do not impose this obligation on the officer or expose him to the peril of passing on the verity of the grounds laid for the attachment in advance of a trial thereof by the court and a jury. For the payment of all damages that may be oeca — 58 — sioned by the defendant in an attachment suit, by reason of the attachment or any process or proceeding thereon, the plaintiff is required to give bond with approved security before the writ is issued. The damages which appellant alleges he has suffered were occasioned, not by the refusal of the officer to allow the exemption rights, but by the process sued out by the plaintiff in the attachment suit, under which the appellant was not entitled to take the statutory exemptions from the officer making the levy under the writ. Section 884, supra, and authorities cited thereunder. It was the error of the plaintiff in the attachment, by making an untruthful allegation in her affidavit by which appellant has been wronged, and not the fault or error of the officer in denying him any right, and his remedy is on the attachment bond and not on the bond of the officer. It would have been proper and regular for the officer to have returned appellant’s claim of exemption with his return of the writ of attachment for the information of the court, but as the appellant made no application to the trial court for his exemption, he was not damnified by the neglect of the officer to make such return, unless it was the duty of the officer to move the court to allow the exemption after the plaintiff in the attachment abandoned that part of her affidavit for attachment which alleged that the defendant (in the attachment) was about to remove, etc. No such duty is required of the officer by any statute. He was not the attorney of the appellant, nor under any obligations, officially or otherwise, to him to do more than make a true return of all process that came into his hands in the attachment proceedings. It is not alleged that he failed to do this, and we affirm the judgment. All concur.