State ex rel. Durner v. Kingsbury

33 Mo. App. 519, 1889 Mo. App. LEXIS 20

• Court: Missouri Court of Appeals
• Decided: February 4, 1889
• Status: Published

Opinion

Ellison, J.

This is a suit against defendant, as constable of Kaw township in Jackson county and his sureties, and the sole question presented is, whether personal property of the head of a family may be levied upon and sold by virtue of an execution which is issued under a judgment in an attachment proceeding, the cause of the attachment being that the defendant “is about to remove out of the state with intent to change his domicile % ”' We answer the question in thé affirmative, section 416, Revised Statutes, 1879, especially providing that in such cases property or wages exempt from execution shall not be exempt from attachment.

If we understand plaintiff’s position it is this, that, notwithstanding you may levy an attachment in such case and that such attachment may be sustained on plea in abatement, as this was, yet, that unless the defendant in the attachment had in the meantime actually left the state, you could not carry out the judgment of the court by execution and would be compelled to release the property back to defendant. Such construction of the statute is wholly unreasonable and would lead to absurd results.

The case of Land v. Davis, 88 Mo. 436, simply decides that a homestead is not subject to attachment on the ground of the owner being about to move out of the state with intent to change his domicile. That is a different proposition from the one urged here, the result of which is, that you may lawfully attach property, sustain your attachment and then must return it to defendant or suffer a suit in damages.

The judgment is affirmed.

Smith, P. J., concurs; Gill, J., not sitting.