Wabash Railroad v. Bowring

ELLISON, J. — This is a proceeding in equity whereby the plaintiff seeks to have its judgment against defendant Bowring-set off against his judgment against plaintiff. The trial court refused plaintiff’s prayer and it duly appealed to this court. The case has a lengthy history. It has been twice before in this court. Bowring sued the plaintiff railway companj’ in Clay county for negligence in killing a hog owned by him of enormous size, alleged to weigh 1,500 pounds and to be of the value of $1,500. After one or two trials without result, he failed in the trial court and on appeal here the judgment was reversed and the cause remanded. 77 Mo. App. 250. At the next trial the defendant (Bowring) dismissed his ease at the close of the evidence and judgment was rendered against him in this plaintiff’s favor for costs amounting to $361.18. Execution was issued against him for such costs and re [162] turned nulla bona. This plaintiff was then compelled to pay and did pay said sum. Defendant (Bowring) afterwards brought a new suit in Jackson county, alleging “that on the the 14th day of September, 1896, plaintiff was the owner of an exceedingly valuable animal of the swine species. Said animal was three years of age and was about the weight of .1,500 pounds, measured seven feet and nine inches in length and seven feet six inches around the girth, and was forty-two inches in height. Said animal was used by plaintiff for exhibiting in a covered tent at fairs and other public assemblies for profit and gain, and for the purposes so used and by reason of its enormous size and education was of the reasonable value of fifteen hundred dollars, of all of which defendant had full knowledge.” A change of venue was taken to Johnson county where, in March 1900, plaintiff obtained judgment for $225 as the value of the hog, which he immediately assigned to defendants Hollis and Houts. This judgment was affirmed in this court (90 Mo. App. 324). The parties were thus left, each with a judgment against the other. Plaintiff then instituted this proceeding for the purpose stated at the outset. At the trial it was shown, among other things, that Bowring was the head of a family and that he had no property. It was further shown that he gave written notice of claim to the sheriff of Johnson county January 11, 1902 (about two years after obtaining his judgment in Johnson county and assigning it to Hollis and Houts), to the judgment as selected by him in lieu of other property, he having none other. The ground upon which defendants seek to sustain the judgment of the trial court is that the hog was specifically exempt fro mexecution against defendant Bow-ring under section 3159, Revised Statutes 1899, which, in the first and second division thereof exempts the following property when owned by the head of a family: “First, ten head of choice hogs, ten head of choice sheep [163] and the product thereof in wool, yarn or cloth, two cows and calves, two plows, one ax, one hoe and one set of plow gears, and all necessary farm implements for the use of one man; second, two work animals, and feed of the value of twenty-five dollars for the stock above exempted.” The statute, in a subsequent section (3162) then permits the claimant, at his election, to select, in lieu of the property mentioned in these two divisions, any other property not exceeding im value the sum of three hundred dollars. The claim is that a hog, being specifically exempt and being the only property owned by a debtor, is exempt without the necessity of selection by the debtor; and that being exempt it could be sold without becoming subject to execution. We have no doubt of the correctness of that statement of the law. Defendants are also right in their further contention that being so exempt, a judgment for its value when lost, is also exempt. Crawford v. Carroll, 93 Tenn. 661; Howard v. Tandy, 79 Tex. 450; Below v. Robbins, 76 Wis. 600; Wylie v. Grundysen, 51 Minn. 360; Stebbins v. Peeler, 29 Vt. 289; Thompson on Homesteads, secs. 748, 749. Analogous to this principle is the doctrine-that insurance money or a judgment for insurance on exempt property is also exempt. Thompson on Homesteads, section 750; Wright v. Brooks, 101 Tenn. 601; Ellis v. Pratt City, 111 Ala. 629; Puget Sound Packing Co. v. Jeffs, 11 Wash. 466. But was the particular hog over which this litigation began exempt within the meaning of the statute? We think it was not.. The primary purpose in keeping hogs is for food, and evidently, the object of the statute in exempting ten head of hogs was to afford the debtor and his family the use of them for food. That would include, incidentally, their propagation, as well as their sale to others, who would, in turn, use them for such purposes. In each of these uses they are subserving their primary purpose; that is, the animals are kept in existence and they are bartered from man to man for food. [164] The hog in controversy was one of abnormal size and weight and the value of which consisted, not in either of the purposes just mentioned, but as a show hog, exhibited over the country from place to place in a tent, for pay. The animal was so profitable in that way that it was withdrawn from the ordinary uses to which such animals are put, and devoted to purposes wholly outside those contemplated by the Legislature. As illustrative of this view of the statute we refer to the provision of the exemption laws of most States that one or more work animals shall be exempt, upon which it is held that if a stallion is kept alone for breeding purposes he would not be within the statute. Robert v. Adams, 38 Calif. 383; Kreig v. Fellows, 21 Nev. 307; Smith v. Dayton, 94 Iowa 102; Allman v. Gann, 29 Ala. 240. In the last case it was said: “If the horse was kept for a business, or livelihood, outside of the comforts, the wants and requirements of the family, and of its several members, then such horse is not exempt.” Notwithstanding a debtor may not be allowed to claim an article of property as specifically exempt under section 3159, yet, as said above, if no claim is made under that section, he may claim the same property under section 3162. In this case though Bowring valued the hog at $1,500 the jury valued it at only $225, and accepting the latter sum as the true value, he insists that as he had no other property, his claim of exemption should be allowed him under the latter section. The difficulty with such claim is that it has been ruled by this court in a well-considered opinion written by Judge Hall that the right to select property under the latter section in lieu of that made specifically exempt under the former, is a personal privilege of the debtor which can not be transferred to another. That if the debtor elects to claim under the latter section and makes his selection of property, he may then sell it and the purchaser will also hold it exempt. But if he sells the property before he makes the selection, the right of selection does not pass [165] to the purchaser. Hombs v. Corbin, 20 Mo. App. 497, 507. That view was concurred .in by Judge Phillips in a separate concurring opinion which by oversight was not published. That ease was approved by the St. Louis Court of Appeals in Stotesbury v. Kirtland, 35 Mo. App. 148, 156; and the same is decided in Alt v. Bank, 9 Mo. App. 91; Taylor v. Switzer, 110 Mo. 410; Keithley v. Southworth, 75 Mo. App. 445. And the same proposition of law was clearly stated in Hombs v. Corbin when in this court on the second appeal (34 Mo. App. 393), though by inadvertence, it was said that the contrary was held when the case was first here. That statement doubtless came to be made by the court mistaking, on the second appeal, the date when the notice of claim of selection of exempt property was made. The record shows the date of that notice was April 16, 1886; more than three years after the debtor had sold the property. In this case, Bowring had no property but the hog, and it not being specifically exempt under section 3159, he, ordinarily, had the right to select it (that is, the judgment for its value) under-section 3162, but as we have already stated, he transferred his interest in the judgment and thereby all right of exemption ceased under the latter section. The judgment should be reversed and cause remanded. All concur.