
    T. J. Furlong, Respondent, v. Edward Thomssen, Appellant.
    St. Louis Court of Appeals,
    November 10, 1885.
    1. Equity — Creditor’s Bill — Municipal Corporations. — A debt due by a municipal corporation to its creditor may, by a creditor’s bill, be subjected to the satisfaction of judgment against the latter.
    2. — Exemptions — Pleadings.—In such an action, if the judgr ment debtor desires to avail himself of the statutory exemptions, he must plead them.
    
      Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.
    
      Affirmed.
    
    B. Schnurmacher, for the appellant:
    The defendant’s claim for exemptions may be made at the trial, or at any time before the sale. The State x. Emerson, 74 Mo. 607; The State x. Earrell, 6 Mo. App. 581; Hirshizer x. Tinsley, 13 Mo. App.' 489; Wallace x. Lawyer, 54 Ind* 509.
    James Taussig and Charles S. Taussig, for the respondent :
    Where a person or corporation not subject to garnishment is indebted to an insolvent person, a bill in equity will lie to aid a creditor of such insolvent in appropriating the credit to the satisfaction of his demand. Pendleton x. Perlcins, 49 Mo. 565; Luthy x. Woods, 1 Mo. App. 167; Beal x. Me Vielcer, 3 Mo. App. 562. Thomssen is not entitled to have three hundred dollars set aside to him under the exemption laws. No such claim was set up by his answer. By attempting to assign the fund, claimed as exempt, to other creditors, he waived his exemption rights to that fund, even though the assignments were ineffectual. Boyer's App., 21 Pa. St. 210 ; Shelly's App., 36Pa. St. 373 ; Lauclc's App., 44 Pa. St. 395. In Missouri, a debtor may waive his exemption. Osborne v. Schutt, 67 Mo. 712.
   Thompson, J.,

delivered the opinion of the court.

The plaintiff, being a judgment creditor of the defendant, Thomssen, and being unable to obtain satisfaction by ordinary process of execution, brought this suit in the nature of creditor’s bill against Thomssen and the city of St. Louis, alleging that the city was indebted to Thomssen in a large sum, by reason of a certain contract between Thomssen and the city, whereby Thomssen had engaged to erect an engine house for the city, and praying that satisfaction, of Ms judgment and costs be decreed out of tbe moneys in tbe bands of tbe city owing to Tbomssen. Tbomssen and tbe city filed separate answers, each being a general denial. At tbe trial, tbe city admitted tbat it was indebted to Tbomssen at tbe time of tbe bringing of tbis suit, and also at tbe time of tbe trial, in a sum in excess of $500, and Tbomssen testified tbat tbe city was indebted to bim at the trial in tbe sum of $590. It also appeared tbat, since tbe service of process in tbe suit upon tbe city and upon Tbomssen, tbe city bad paid to Tbomssen, at various times, tbe aggregate amount of $3,848.

At tbe trial, Tbomssen testified tbat be was tbe head of a family, keeping bouse in St. Louis, and be was permitted, against tbe objection of tbe plaintiff, to state tbat be claimed three hundred dollars of tbe money still in tbe city’s bands and due Mm, as an exemption under tbe statute.

Tbomssen also gave evidence to tbe effect tbat since tbe bringing of tbis suit be bad given orders on tbe city treasurer to sub-contractors, as follows, which orders are still outstanding: In favor of Em. Wachter, two hundred dollars ; in favor of Henry Witler, one hundred and thirty-five dollars; in favor of Drey & Kahn, one hundred and thirty-four dollars ; in favor of H. Etzel, two hundred dollars; making a total sum of six hundred and sixty-nine dollars, being an amount in excess of tbe amount due bim from tbe city at tbe time of tbe trial. Tbe testimony of both parties showed tbat tbe city refused to recognize these assignments.

Upon tbis basis tbe court rendered a decree for tbe plaintiff, tbat tbe city pay bim tbe sum of $429.96, together with tbe costs of tbis suit. Tbe defendant, Tbomssen, filed a motion for a new trial, one of tbe grounds being tbat tbe court erred in failing to adjudge and set apart Ms exemption in the' fund in controversy. He also filed a motion to modify tbe decree so as to make it show upon its face tbat tbe court did not intend to deprive tbe defendant of bis exemption rights, and to appropriate to the satisfaction of the plaintiff’s demand so much of the moneys in the hands of the city as were exempt to the defendant, etc.

These motions were overruled, and the defendant, Thomssen, has aloné appealed.

The plaintiff has resorted to a well recognized proceeding, the essential ground of his right to resort to equity being that the city is not liable in the statutory proceeding by garnishment. Pendleton v. Perkins, 49 Mo. 565; Luthy v. Woods, 1 Mo. App. 167; Beal v. Mc Vicker, 3 Mo. App. 592.

Waiving other questions, there is one ground on which we think the action of the circuit court in disallowing this claim of exemption must be upheld. It was the duty of Thomssen to plead it by way of answer. The plaintiff had a right to know before going to trial that such a claim would be made, in order to be prepared to meet it, and the city had a right to know that it-would be made, in order to withhold from Thomssen a sufficient amount of the money for its own protection. It is not a sound conclusion that in a proceeding of this character the creditor is bound to take notice of the fact that the debtor will be entitled to an exemption and to anticipate that he will claim it, even where he does not set it up in his answer.

The mere fact that the plaintiff’s executions have been returned nulla tona does not carry with it an implication that the debtor will be entitled to an exemption out of a fund which the creditor can reach only by a proceeding in equity. The very reason why the creditor’s executions have been returned nulla tona may be that the debtor had only, within the view of the officer, such specific property as is by the statute exempt from execution, in which case there is authority for the position that the officer is bound to take notice of the exemption; (Perry v. Lewis, 49 Miss. 443), and to notify the debtor of his rights. The State to use v. Romer, 44 Mo. 99; The State to use v. Barada, 57 Mo. 562. The exemption remains, nevertheless, a personal privilege, which the debtor may or may not claim. Osborne v. Schutt, 67 Mo. 712. He may waive it by not claiming it at the proper time ; and where the proceeding is a creditor’s bill in equity to subject a fund which can .only be reached in this way, upon principle, the appropriate way for him to claim it is to set it up in his answer, just as he is required by the rules of legal procedure to set up in his answer any other constitutive fact which makes against the right of the plaintiff to the relief he seeks.

There is no force in the contention now made for the first time in this court that the circuit court ought to have appointed a receiver, and allowed the persons to whom Thomssen had made the assignments above stated to intervene, so as to adjust the equities subsisting between them and the plaintiff in respect of the fund. There was nothing to prevent their intervening if they had seen fit, and until they intervene and set up their rights the court is not bound to consider them. Besides, upon the testimony it does not appear that the decree which the court rendered has endangered their rights, since the defendant, Thomssen, testified that he was actively engaged in business as a builder, and paying all his debts, except this indebtednes to the plaintiff.

The judgment will be affirmed. It is so ordered.

All the judges concur.  