Buis v. Cooper , 63 Mo. App. 196 ( 1895 )

Ellison, J.

This is an action of replevin, which, on the main points in controversy here, was decided in plaintiff’s favor by the trial court, as, on those questions, the jury were directed not to consider the evidence which had been given.

It appears that one Dowell had a claim against this plaintiff as a common laborer and that within six months after his claim accrued he began suit before a justice of the peace against this plaintiff and recovered judgment thereon for $11.15. An execution was issued on this judgment and delivered to the defendant herein, who was acting as deputy constable, and who, for present purposes, we will consider to be such deputy, regularly appointed. Defendant levied the execution on personal property of this plaintiff which was ordinarily exempt from execution, plaintiff being the head of a family. Plaintiff then instituted the present action of replevin and had the property, which consisted of two horses, taken from the defendant constable, and recovered in the trial court.

The suit of Dowell against this plaintiff, being for work and labor, was instituted under the provisions of sections 4910, 4912, and 4913, Revised Statutes, 1889. And if those sections have been observed and complied with in that case, plaintiff was not entitled to the claim of exemption from execution and his case here in this respect must fail; for it is provided by those sections that to the amount of $90 due to a house servant or common laborer, no property of such debtor shall be exempt from execution, if the suit to recover for service be commenced within six months from the’ performance of the last service. But in order to give this privilege to such servant or laborer, the judgment must be, and it must be recited in the judgment, that the amount found is for such service and that the last service was within six months of the time of bringing the suit; and these facts, by the terms of section 4913, must also be recited in the execution which is issued on such judgment. Therefore, notwithstanding the suit may be for the service of a house servant, or a common laborer, and the last service be within six months prior to bringing the suit, yet in order to prevent the defendant in such suit from claiming exemptions, those facts must appear in the judgment and be recited in the execution. In this case we may grant that the judgment in the Dowell case against this plaintiff sufficiently showed that the work sued for was that of a common laborer; yet it nowhere appears in such judgment that the last, labor was performed within six months prior to bringing the suit. In docketing the case, when filed with him, the justice stated in the docket that such was Dowell’s claim, but there is nothing to show that this was found by the justice to be the fact. Furthermore, the execution afterward issued and delivered to this defendant, under which he took plaintiff’s property and refused him his ordinary exemptions, is a mere ordinary execution, with none of the recitals required by the statute. The constable, therefore, had not the requisite authority to refuse plaintiff his exemption.

2. But, notwithstanding a lack of the statutory prerequisite to depriving a defendant from making a claim of exemption, the judgment and execution are not, for that reason, void. They will remain good as an ordinary judgment and writ. And so we hold the Dowell judgment and execution to be valid in this case, as in ordinary cases.

3. We are thus brought to the question whether this plaintiff can replevy property which has been taken on an execution against him, notwithstanding it may be exempt from execution. By reference to our statute of replevin, it will be seen that the plaintiff in replevin is required to make affidavit that the property he seeks to have taken has not been seized under an execution against him. This would settle the point against the plaintiff here, unless the fact that the property taken was exempt can influence a contrary conclusion. In many states it is held that if the property be exempt from execution, the defendant in the execution may replevy it from the officer. Wilson v. Stripe, 4 Greene, 551; Louisville E. & S. R’y Co. v. Payne, 103 Ind. 183; Westerberger v. Wheat, 8 Kan. 169. But in such jurisdictions the general rule is recognized that the defendant in an exection can not replevy from the officer the property taken under the writ; and the exception in favor of exempt property is specially made by statute. We have no such statutory exception in this state, and hence believe the general rule should find full application in all cases where the proceeding is based on valid process and is executed by proper authority. If exempt property is levied upon, there are ready and adequate means to restore it, other than by an independent suit in replevin, a proceeding which is necessarily accompanied by much delay as well as embarrassment to the court issuing the execution. Hawk v. Lepple, 51 N. J. L. 208.

4. The further question is presented whether this defendant was an officer authorized to levy the execution. He claims to have been a deputy constable. The statute provides, section 2378, that the constable may appoint a deputy and the appointment and oath of office must be filed with the county clerk. This contemplates that the appointment shall be in writing. But the evidence here shows that the appointment was verbal, it being further shown that defendant acted as such deputy and was reputed to be such. It was decided by the supreme court that the appointment and oath of the deputy need not necessarily be filed with the county clerk, the statute being construed to be directory in this respect. State v. Underwood, 75 Mo. 230. It was further held that, where the deputy was appointed in writing, not filed with the clerk, and also failed to take the required oath, he was, nevertheless, a de facto officer. State v. Dierberger, 90 Mo. 369. The difference between the latter case and the one under discussion is that in this case the appointment was verbal.

In passing on the instruction given for plaintiff, we must assume the fact to be that this defendant was verbally appointed deputy by the constable of the township and that he acted and was reputed as such. Accepting the logical deduction to be made from the reasoning in State v. Dierberger, and especially of the case of Simpson v. McGonegal, 52 Mo. App. 540, we are constrained to hold that the defendant was a de facto officer. The mere fact that this appointment was verbal ought not to distinguish this from those cases. The result is that since the judgment and execution were valid, and since the evidence tended to show defendant to be a de facto officer, the court should not have given plaintiff’s first instruction declaring the execution and the acts of the officer void.

5. It is suggested that this is a direct attack upon the officer himself and that therefore the reason for the application of the rule as to de facto officers does not exist. This suggestion is not supported by the facts. The plaintiff in the execution is interested in the levy, and if the levy is to he destroyed by sustaining this action, plaintiff’s rights are directly affected.

The judgment will be reversed and the cause remanded.

All concur.