Caldwell v. Ryan

VALLIANT, J. — This is a suit to recover the value of two mules which plaintiff avers belonged to bim and were unlawfully converted by defendant. Prior to this -suit, the defendant, Ryan, had brought an action of replevin against the plaintiff, Caldwell, for the possession of the mules, and having given bond according to the statute the mules were by the constable taken from Caldwell and delivered to Ryan. Pending that replevin suit Ryan caused the mules to be sold under a chattel mortgage which he held. The replevin suit resulted in a judgment in favor of Caldwell for the return of the mules, but there was no assessment of their value, hence no judgment in the alternative against Ryan for their value. When the replevin suit ended and the mules were not forthcoming to satisfy the judgment and Caldwell having no judgment therein for their value, he brought this suit to recover $200 as for their conversion. The defendant’s answer was a general denial, and a “set-off and counterclaim, ’ ’ consisting of two judgments previously rendered in his favor against the plaintiff amounting with interest to $718.92. Plaintiff in his reply alleged that he was the head of a family and as such was entitled to hold the judg — 21 — ment lie was seeking to recover against the defendant exempt from execution under section 3159, Revised Statutes 1899, he having no other property, and therefore the defendant had no right to set-off his judgments against it. The trial resulted in a judgment for the plaintiff for $189.70 on his demand, and in favor of defendant for $718.92 on his counterclaim, but it was adjudged that the defendant was not entitled to offset the judgment against him by his judgment against the plaintiff. Therefore execution was awarded in plaintiff’s favor for $189.70 and costs, and also judgment in favor of defendant on his counterclaim, for $718.92 and costs, and execution awarded. From the judgment in favor of the plaintiff the defendant has appealed. The appeal was taken to the Kansas City Court of Appeals, where the judgment was affirmed, but one of the judges of that court being of the opinion that the decision was in conflict with the law as declared by this court in Garrett v. Wagner, 125 Mo. 450, and by the St. Louis Court of Appeals in-Weinrich v. Koelling, 21 Mo. App. 133, the cause was transferred to this court. Defendant’s assignment of errors cover thrée points: 1. That the plaintiff having failed to have the value of the mules assessed in the replevin suit is'precluded now from recovering their value in a suit for conversion. 2. That the court erred in including in the assessment of plaintiff’s damages an item of $25 expenses he incurred in the former suit. 3. That the court erred in refusing to allow the defendant to offset his counterclaim against the plaintiff’s demand. After the judgment was rendered the plaintiff entered a remittitur as to the disputed item of $25, therefore that assignment is out of the case. — 22 — I. The result of the replevin suit was a judgment that the mules belonged to Caldwell, the plaintiff in this suit, and that he was entitled to the possession; the verdict should have gone further and assessed the value of the mules, and the judgment should have followed the verdict and have given Caldwell the choice to take the mules or their value. [Secs. 3921, 4473, and 4474, R. S. 1899.] But in point of fact the only thing adjudged was that they were Caldwell’s mules. Defendant Ryan now thinks that because the plaintiff acquiesced in the judgment as it was he has no right to call him to account for the value of the mules wrongfully disposed of while the replevin suit was pending. The Kansas City Court of Appeals ruled that point against defendant and correctly so. The purpose of this statute was to settle in the one suit all questions that might arise out of the alleged unlawful taking or detention of the property. The assessment of the value was for the benefit of the party found to be entitled to the possession of the property and the law gave him the right to ele'ct which he would take, the property or its .value. If his choice was the property, not its money value, and if the property was forthcoming to satisfy the judgment; the assessment would be of no- consequence to him. His acquiescence in a judgment for the possession when there was no assessment of value would place him in the same condition that he would have been placed by his election to take the property instead of the assessed value if there had been an as.sessment. Defendant relies on White v. Van Houten, 51 Mo. 577, wherein the court said: “The law surely contemplated, that when the case was prosecuted to final judgment, all questions- of value, damages and costs, should be disposed of in the same proceeding.” And the court held that the plaintiff in that case could not in an action on the replevin bond recover damages for the detention of the property when none had been — 23 — assessed by the jury in the replevin suit. Bnt there was a material difference between that replevin suit and the one we are now discussing; there, as here, the plaintiff had' sued in replevin before a justice of "the peace, had given bond and the property had been delivered to him, on the trial the judgment was against him, but there was an assessment of the value of the property, but none of damages for detention, whereupon he delivered the property to the defendant and paid the costs. The subsequent suit was on the replevin bond to recover damages for detention and it was held that the suit' could not be maintained. In the case at bar we hold that the judgment in the replevin suit was good as far as it went, that it established the right of Caldwell to the possession of the mules, and we further hold that Eyan’s disposal of the mules while that suit was pending amounted to a conversion of them to his own use and he was liable to the plaintiff for their value. H. The defendant in his answer calls his demand a “set-off and counterclaim.” There is a difference between a set-off and a counterclaim, each is the creature of a separate statute. [McAdow v. Ross, 53 Mo. 199.] The law of counterclaim comes under the Code of Civil Procedure, but the statute of set-off was in our books long before the code was adopted (R. S. 1825, p. 738; R. S. 1835, p. 579) and is substantially now as it was in 1835. [Sec. 4487, E. S. 1899.] A counterclaim and set-off are different in some respects though they bear close resemblance in some other features. But there is no occasion now to discuss the points of difference and those of resemblance between a counterclaim and a set-off, because in this case both parties and the trial court construed the defendant’s answer as intended to plead a set-off and that was doubtless correct. The' defendant was insisting on having his debts, for which he already had two judgments, set-off against — 24 — whatever judgment the plaintiff might obtain against him, while the plaintiff was insisting that the set-off should not be allowed because the judgment that he hoped to recover would, when recovered, be exempt from execution. The plaintiff’s reply to the defendant’s answer, that is, so much of it as stated facts intended to make out a case of exemption from execution, was foreign to the office of pleadings. Pleadings relate to the cause of action, either to support or to defeat it; they have nothing to do with the enforcement of the judgment after it is obtained. The office of the petition is to state facts constituting the cause of action, the office of the answer to deny the statements or to state other facts to avoid the cause of action, and the office of the reply is to deny the new matter in the answer or to state other facts which go to show that the plaintiff should not be precluded in his recovery by reason of the-new facts stated in the answer. There is no place in the pleadings for the claim of exemption from execution, except of course where the cause of action or defense arises out of the exemption statute, as, for example, where the plaintiff’s exempt property has been wrongfully seized or where the attempt is to take from a defendant property which the statute of exemption allows him to hold. But where the plaintiff’s cause of action is not based on an infringement of rights under the exemption statute, a plea that the judgment sought to be recovered should, when recovered, be adjudged as exempt from execution has no place in the office of pleading. That, however, was the plea in the plaintiff’s reply'in this case and it was sustained by the trial court. The plaintiff’s sole contention, in reference to the set-off, in the trial court was that because he was the head of a family and had no other property he was. entitled to hold as exempt from execution the money — 25 — that he was seeking to recover in this suit, and, ergo, the defendant could not set-off against it the amount he owed defendant. The court rightly held that the set-off could not he allowed, hut erroneously based the holding on the plea of the statute of exemption. The ground on which the set-off should have been denied is that the defendant’s claim is in contract, that is, in judgment, while the plaintiff’s claim is in tort. The statute relating to set-off is section 4487, Revised Statutes 1899: “If any two or more persons are mutually indebted in any manner whatsoever, and one of them commence an action against the other, one debt may be set-off against the other, although such debts are of a different nature.” Under this statute, when the parties are mutually indebted, one debt may be set-off against the other, though they differ in character, that is, though the mutual debts may be simple contract, covenant, or judgment, but the demands must come under the classification of debts, the parties must be “mutually indebted.” A demand of damages for a tort is not a debt and is not embraced in.the statute of set-off. [State to use v. Modrell, 15 Mo. 421.] In the case just cited the court said: ‘ ‘ There must be a debt on the part of the plaintiff, as well as on the part of the defendant, to authorize a set-off. The test given by Chief Justice Kent is, that the indebtedness for which the action is brought must be such that if the plaintiff were sued by the defendant upon the set-off claimed, he could claim his cause of action in that suit, as a set-off. [Gordon v. Bowne, 2 Johns. 150.] ” Applying that test, if the defendant had sued the plaintiff on these two judgments could the plaintiff have pleaded his claim of damages for the conversion of the mules as a set-off? The ruling in that case has been followed in other cases: Johnson v. Jones, 16 Mo. 494; — 26 — Mahan v. Ross, 18 Mo. 121; Pratt v. Menkens, 18 Mo. 158; State ex rel. v. Eldridge, 65 Mo. 584. The trial court in this case, therefore, was right in holding that the defendant could not set-off the debt "due him against the plaintiff’s demand, and the court would have been justified in striking out the plea of set-off entirely, on the ground that a debt could not he set off against a demand for damages arising in a tort. And if the court had gone no farther than to render judgment for the plaintiff for the valúe of the mules In the face of the defendant’s plea of set-off, the judgment could not be disturbed, because the presumption would be that the court so ruled on the ground that it was not a case of mutual indebtedness; therefore, not a •case for set-off. If the court had stopped at that point it would have left the plaintiff with his judgment and the defendant with his, and each entitled to sue out execution. Then when the executions were in the hands •of the sheriff the rights of the parties would be adjusted as prescribed in sections 4496 and 4497, Revised Statutes 1899. But the court did not stop there; it went on in its judgment to say that the plaintiff was a married man, head of a family, and entitled to claim the judgment in his favor as exempt by law. That would doubtless be construed by the sheriff as a direction to him that he was not to execute the writs in the manner prescribed in the two sections of the statute just quoted, bút was to levy the plaintiff’s execution on defendant’s property and leave the defendant without recourse for the debt due him, which would have been to violate the statute. The plaintiff’s proposition is that because he is the head of a family and would be entitled to hold the amount of this judgment, if he had it in hand, against any execution or attachment that might come against him, therefore, not having it in hand, he is entitled to levy it of defendant’s goods, although he is justly in — 27 — •debted to the defendant for a larger sum — he must have his debt and the defendant must go unsatisfied for what the plaintiff owes him. That is what the court decided and it is in accordance with the decision of the Kansas City Court of Appeals in Wagner v. Furniture Co., 63 Mo. App. 206, although there were circumstances in that case which would distinguish it from this case, if the right of set-off in this State now depended on the ancient equitable doctrine of set-off to be administered as it might seem right to the chancellor ex aequo et bono. But the right of set-off in Missouri is not given •or withheld as the conscience of the chancellor in a given case may dictate, it is a positive legal right given by statute. The Kansas City Court of Appeals in the case above named relied chiefly on certain Indiana cases, the first of which, and which is referred to as the authority of the later cases on that subject in that State, is Puett v. Beard, 86 Ind. 172. But in that case the Indiana court said; “The right to set off one judgment against another is purely equitable, and allowed only where good conscience requires it.” And again •on page 178, the court said: “The practice in a proceeding to set off one judgment against another is not prescribed by any statute, nor is the -right to order it •done conferred upon the courts by any legislative enactment ; but courts possess the authority, as they do many other powers, in virtue of their general equitable authority over officers and suitors, and as one of the inherent judicial powers which are necessary to the existence of a court.” These quotations show the difference between the right of set-off in Indiana and that right in Missouri. The Indiana court was right in saying that set-off was in the beginning a creature of equity jurisprudence, and that it was not known to the common law. [Waterman on Set-Off (2 Ed.), p. 18; Idem, p. 383.] It is a doctrine so absolutely necessary to the adminis — 28 — tration of justice that a court of equity could not fail to supply .it when the common law had omitted it. And if, as the Indiana court said, there was no statute in that State directing the practice in proceedings to set-off one judgment against another, the jurisdiction to do so was inherent in the court exercising equity jurisdiction, or in a court of law administering justice according to the equitable principle. But in Missouri the right of set-off is given by statute and the procedure to enforce it is also prescribed by statute and the courts have authority only to enforce the law as it is written. The following are our statutes on this subject: “Sec. 4493. A set-off shall he pleaded in the manner provided by law, and if the amount of set-off he equal to the plaintiff’s demand, the plaintiff shall recover nothing by his action; if it be less than the plaintiff’s demand, he shall have judgment for the residue only. “Sec. 4494. If there be found a balance due from the plaintiff to the defendant, judgment shall be rendered for the defendant for the amount thereof, together with costs.” If a plaintiff’s cause of action and a defendant’s set-off are in the character of mutual indebtedness, sections 4493 and 4494 prescribe how they shall be pleaded and how adjusted in the judgment of the court. But if, as in the case at bar, the claim of one of the parties is founded in tort and the other in contract, then the case is not one of mutual indebtedness and the set-off will not be allowed in the judgment. When, however, as in the case at bar, the plaintiff has reduced his claim to a judgment, then he may sue out execution on his judgment .and the defendant may likewise have execution on his, and both executions coming into the hands of the sheriff the statute prescribes in unequivocal terms how the sheriff shall proceed to execute the. writs. Section 4497 directs the sheriff, in such case, — 29 — how to proceed to set-off one execution against the other, satisfying the smaller by applying the amount as far as it will go to the satisfaction of the larger, then levying the balance and endorsing the fact of set-.off on both writs in his returns. Then section 4498, immediately following, specifies certain exceptions and gives explicit directions that in certain cases set-off shall not be allowed. Expressum facit cessare taciturn, which a celebrated English writer of the eighteenth century has said may be freely translated: ‘ ‘ Where a lawgiver sets down plainly his whole meaning, we are prevented from making him mean what we please ourselves.” Here the lawgiver has plainly set down the general rule and has as plainly set down the exceptions. It could not have been intended by the Legislature to clothe the sheriff with judicial power to adjust the rights of the parties on principles of equity, the statute lays down for him a plain executive duty to perform. If in this case the defendant had not attempted to plead his judgments as a set-off but had waited until the plaintiff had sued out an execution on his judgment and had then sued out executions on his own, the case would have been simplified. When in' this case the execution on the plaintiff’s judgment against the defendant and the executions on the defendant’s judgments against the plaintiff come into the sheriff’s hands, that officer will find all the directions he needs in sections 4497 and 4498; he will have nothing to do with the statute of exemptions until he undertakes to levy the balance due defendant out of plaintiff’s property, then if the officer should undertake to seize property of plaintiff which is exempt from execution the plaintiff may claim his exemption. The right of a plaintiff to hold property exempt from execution does not impair the right of a defendant to set off a debt the plaintiff owes him against .a debt he owes the plaintiff. The meaning of the statute of — 30 — set-off is that the defendant is not to he adjudged indebted to the plaintiff unless it he in a sum beyond the amount in which the plaintiff is found to be indebted to him and then the judgment goes only for the excess. That is not only what the statute expressly says but-it is what common honesty dictates. To the extent that the plaintiff is indebted to the defendant there is nothing owing to him from the defendant, the defendant has nothing in his hands belonging to the plaintiff either to be reached by execution or set apart to him as exempt. The statute creating exemptions of personal property is found in the Revised Statutes only'in the chapter on Executions, and the directions for securing its benefit to the debtor are also found only in that chapter. It has been held by this court and the St. Louis Court of Appeals that a claim for exemption can arise only when the officer comes with the writ. [Garrett v. Wagner, 125 Mo. 450; Weinrich v. Koelling, 21 Mo. App. 133.] If a court could ever be justified in holding that a plaintiff may seize and sell a defendant’s property to-pay a debt which the defendant owes the plaintiff, while at the same time the court finds that the plaintiff' owes the defendant an equal or larger debt for which he can have no reciprocal satisfaction, it would be only when the General Assembly had so written the law in terms too plain for construction. The statutes of exemption were conceived in mercy for the unfortunate debtor and are to- be construed in that spirit, but they are not to be construed to give him what in common honesty does not belong to him. A debtor has no right to hold as exempt anything that is not his own; that is not his own of which he neither has possession nor the right now or in the future to reduce to possession. The statute of exemption was made to- cover as with a shield what the unfortunate — 31 — debtor bas in Ms possession when tbe officér comes with a writ to take it from him; it was not made to arm him as with a sword to levy contribution on his neighbor. We hold that the right of set-off is not subordinate to the right of exemption from execution, and therefore to the extent that the following cases hold, the contrary they are hereby overruled; viz.: Wagner v. Furniture Company, 63 Mo. App. 206; Lewis v. Gill, 76 Mo. App. 504; State to use v. Hudson, 86 Mo. App. 501; Bowen v. City of Holden, 95 Mo. App. 1. The judgment of the circuit court is reversed and the cause remanded to that court with directions to dismiss without prejudice so much of the defendant’s answer as affirmatively pleads his two judgments as set-offs, or suffer him to dismiss it, and to render judgment for the plaintiff for $164.70, being what the court found to be the value of the mules, $150, plus $14.70, interest up to the date of that finding, and the costs in that court. Gantt, C. J., Burgess, Fox and Woodson, JJ., concur; Lamm, J., files dissenting opinion in which Graves, J., concurs.