16 S.D. 562 | S.D. | 1903
This is an action to recover of the defendant, as sheriff of Beadle county, the value of certain personal property levied upon and sold by him, and which the plaintiff claims was exempt property. Findings and judgment were in favor of defendant, and the plaintiff appeals.
Two questions are presented for our consideration, namely: (1) Was the plaintiff the head of a family, within the meaning of our exemption laws? (2) Were the debts incurred upon which the judgments were obtained against the plaintiff, and under which the property was sold by the defendant, contracted for property obtained under false representations or pretenses, and for the purchase money of property claimed to be exempt?
The order denying a new trial is as follows: “This case coming on for hearing upon the application of the defendant for an order to set aside the special verdict which was rendered in this case upon the several grounds mentioned in the notice of such application, and it appearing to the satisfaction of the court upon the hearing that the said motion should be sustained, it is ordered and adjudged that the said motion be, and the same is hereby, sustained. The special verdict of the jury which was rendered herein is hereby vacated and set aside; and it further appearing to the satisfaction of the court, upon the findings made by the court upon additional issues in this cause, that the plaintiff cannot in any event recover herein, it is ordered that no new trial of the said issues shall be necessary.” It appears by the evidence that the plaintiff was a married woman, living with her husband, who was a registered pharmacist, and that the husband and wife carried on the drug business; the wife claiming to own the stock of goods, and the husband managing and conducting the business as the agent of the wife. The business seems to have been carried on in the name of the plaintiff since 1885. The family consisted of the husband, wife, and four children. No evidence was introduced on the part of the plaintiff showing that the husband was incapacitated, -by misfortune, infirmity, dissipation, or any other cause, from occupying his position as head of the family. It is provided by section 2587, Comp. Laws 1887, that the husband is the head of the family; and a husband, therefore, living with his wife, is presumed to be its
It is contended by the appellant that there is no evidence introduced to support the findings of the court that the debt to Hornick, Hess & Moore was for property obtained by means of false representation, and that the plaintiff was therefor, under the law, entitled to her exemptions. It is insisted, however, on the part of the respondent, that inasmuch as the verdict of the jury was set aside by the court, and no finding made by it that the plaintiff was the head of a family, the judgment was necessarily in favor of the defendant,
Section 2. c. 86, p. 202, of the Laws of 1890, provides: “In addition to the property mentioned in the preceding section the debtor, if the head of a family, may, by himself or his agent or attorney, select from all other of his personal property not absolutely exempt goods, chattels, merchandise, money or other personal property, not to exceed in the aggregate seven hundred and fifty dollars in value; and if a single person, not the head of a family, property as aforesaid of the value of three hundred dollars, which is also exempt, and must be chosen and appraised as hereinafter provided.” It will be observed, therefore, that it was necessary for the plaintiff to establish the fact that she was the head of a family, and that fact must be found by the court, in order to entitle her to recover in this action. It will be seen from the proceedings in this case that the jury had found that the plaintiff was the head of a family, but that verdict was set aside by the court, and no direct finding was made upon this issue by it. It would seem, however, that the court, in effect, by vacating and setting aside the verdict of the jury, did find that the plaintiff
It appears from the evidence that in June, 1900, the husband of the plaintiff, acting for her, with her knowledge and consent, represented to Hornick, Hess. & Moore that she was possessed of property, exclusive of all her liabilities, of the value of $7,000 and that the cash value of her merchandise was $3,700. In December of the same year she makes affidavit that the value of her property, exclusive of her homestead, was less than $750, including her stock of merchandise. No explanation was given by the plaintiff or her husband as to this depreciation of about $3,000 in such stock between June and December. She does not claim that she had sold that amount, for she states in her evidence that the season for her business had been a very bad one. No explanation is made, either by the plaintiff or her husband, as to what had become of the property, of the value of $.7,000 over1 and above her liabilities, between June and December. The witness was asked on cross-examination if this statement then made was true, to
The judgment of the court below, and order denying a new trial, are affirmed.