State ex rel. Henneke v. Wolf

BIGGS, J. This is an action on a constable’s bond. The breach assigned is that the defendant Wolf, as constable, wrongfully deprived the relator of her exemption rights. The relator is the wife of Louis E. Henneke. The latter at one time owned a grocery store, consisting of a small stock [588] of family groceries, some store fixtures, and a horse and delivery wagon. He and the relator, together with their two children lived over the store. Certain suits by attachment were begun against Henneke before a justice of the peace. The writs of attachment were placed for service in the hands of the defendant Wolf as constable, and under them he seized the above property. After the levies had been made the relator served upon Wolf the following notice, to wit: “To Phillip Wolf, Constable Second District, City of St. Louis: “You are hereby notified that I am the wife of Louis E. Henneke, that said Louis E. Henneke has absented himself from his place of abode, and she does not know his present whereabouts; that she and her said husband are residents of this state, and have been for many years past; that she now claims the benefits of the exemption laws of the state, and now demands that the property be exempted from execution and attachments by sections 4903 and 4906, R. S. 1889, set apart to her and released from levy. “Anna Henneke. “Witness: Ben Toelke.” The relator introduced evidence tending to prove the further facts, that at the time she made her claim of exemptions her husband had absconded or absented himself from their house; that she did not know of his whereabouts; that he remained away for about four months; that she and her husband had lived in the state of Missouri for about twelve years; that they had two children; that he had no property, except that levied upon, save some household furniture, and that when she served the notice on Wolf of her exemption claim he declined to recognize her rights, stating that she was not entitled to exemptions, and that he had been indemnified against her claim by the attaching creditors. The defendants introduced no testimony, but asked the court to give an instruction in the nature of a demurrer to plaintiff’s evidence, This [589] the court refused to do. No other instructions were asked or given. The court found the issues for the relator and assessed the damages at $321. Thereupon a judgment was entered for the penalty of the bond to be satisfied by the payment of the damages assessed and the costs of suit. The defendants have brought the case here by appeal. There was a motion sustained in this court suggesting a diminution of the record. In compliance with our order the clerk of the circuit court has amended the transcript by sending up a copy of the writ of attachment issued by the justice of the peace and under which Wolf made the levy. This writ, with the return thereon showing that the stock of goods, horse and wagon were levied upon, was z’ead in evidence. Therefore the point made by .appellants that there is nothing to show that Wolf in seizing the goods acted officially, that is under some writ or process issued by a court having jurisdiction, goes for nothing. The further contentions that the relator failed to make her election under the statute, and that she failed to make selection of the specific goods in place of the articles specially exempt under section 4903 of the statute, must likewise be overruled. The written notice was a sufficient election. In it the relator asserted the right to claim under both sections (4903 and 4906), which under the circumstances she could have done. She could have claimed the horse under section 4903 and a sufficient amount of other property under section 4906 to make $300 in value; Mahan v. Scruggs, 29 Mo. 282. It was impossible for relator to make her selection under the law, when she had no knowledge of the property held by Wolf, and the officer peremptorily denied her right to any exemptions at all. The judgment of the ciz-cuit court will be affirmed. All concur.