5 S.D. 508 | S.D. | 1894
On the 18th day of November, 1893, the circuit judge of the eighth circuit, upon an affidavit apparently sufficient, made an order requiring appellant, as an execution defendant, to appear before him to answer on oath concerning
ON MERITS.
Upon the hearing before the judge, it appeared that after issue of the execution the defendant therein (the appellant here,) for the purpose of claiming the exemptions allowed by statute, made a schedule of his personal property. This schedule included “household furniture,” the items of which are not enumerated. It did not expressly name a “watch and chain,” or “a diamond ring.” Upon his examination the defendant testified that he was the owner of a gold watch and chain, costing, three years before, $120; that he claimed them as exempt, but did not expressly name them in the schedule because he was informed by his attorney, under whose advice the schedule was made, that it would be included in and covered by the general expression, ‘‘household furniture,” and that he intended and understood that the same was so included, and so represented in his schedule, and then and there gave notice to the judge and the parties plaintiff that he claimed the same as exempt. He also testified that he sometimes wore a diamond ring, but that he did not own it; that he bought it from his personal earnings, and presented it to his wife two or three years before, but since he became indebted to plaintiffs, and that she was still the owner of it; that he occasionally put it on and wore it. Upon this evidence the judge made an order requiring the defendant, within five days, to deliver the watch and chain to the sheriff, and to so deliver the ring, if in his possession or under his control. From the refusal of the court to vacate this order, the defendant appeals.
As to the ring, the order was certainly erroneous. The ownership of it may have been in doubt. The wife may have legally owned it, At all events, she evidently claimed it, and
In regard to the watch and chain, we think the judge correctly held that they were not included in the term ‘ ‘household furniture. ” We have little doubt that a watch might be so used in the family, as a substitute for a clock, as to entitle it to be exempt, as household furniture, under the same circumstances, to the same extent, and for the same reason that a clock would be; but prima facie, or upon the facts disclosed here as to its use, it would not be. A watch and chain habitually carried upon the person of the debtor, for his own convenience, can hardly be said to be included in the term “household furniture.” It is not used in or by the household, or for the benefit or comfort of the family. Rothschild v. Boelter, 18 Minn. 361, (Gil. 331.) If the evidence before the
The effect of the ommission of the watch and chain from the schedule is declared by section 5130, Comp. Laws: “Any property owned by the debtor and not included in said schedule shall not be exempt as aforesaid.” It affirmatively appears that the omitted watch and chain were owned by the debtor when he made the schedule, but were omitted not through any accident or mistake of fact, but through a misunderstanding of the legal effect of the term “household furniture.” It was in the nature of a mistake of law. We do not think the judge erred in refusing to allow him to amend his schedule, or make a new claim for further additional exemptions. Possibly, there might be cases, when so long a time and so many changes had intervened between the making of the schedule and the institution of supplementary proceedings, that a debtor should not be concluded by his schedule; but there could be no such claim here, as the order and examination closely followed the making of the schedule and the return of the execution.
So much of the order appealed from as refuses to vacate the order of the judge requiring the defendant to deliver to the sheriff the diamond ring therein described is reversed, and that part of the judge’s order is vacated. So much of the order as refuses to vacate the order requiring defendant to deliver to the sheriff the gold watch and chain is affirmed. Aside from the clerk’s cost in this court, which will be taxed against respondents, no costs will be .taxed in favor of either party. AH the judges concur.