104 Ind. 255 | Ind. | 1885
On and before the 17th day of January, 1885, the appellees, Bowser and Trout, the plaintiffs below in this cause, owned and held a judgment against the appellant, Butner, .for the sum of $238.87, rendered in the court below upon a jiromissory note executed by Butner, which judgment was in full force and wholly unpaid. On and before such 17th day of January, 1885, appellant Butner was the owner and holder of two judgments against the appellees Bowser and Trout, one for $56.75, and the other for $65.96, both of which judgments were rendered in the court below, and wrere in full force and wholly unpaid. The appellees, on the day and year aforesaid, filed their written motion or complaint in this cause, setting up substantially the facts above stated and praying that the judgments, so owned and held by appellant B.utner, might be set off against an equal amount of the appellees’ judgment against him, Butner, and for judgment against the latter for the residue of their judgment and for other proper and equitable relief.
To this motion or complaint appellant Butner answered in two special or affirmative paragraphs, to each of which the appellees’ demurrer, for the alleged want of facts therein to constitute a defence to their suit, was sustained by the court.
The evidence on the trial is not in the record, and the only errors assigned by Butner, which are discussed by counsel or present any question for our decision, are based upon the rulings of the court below, in sustaining appellees’ demurrers to the first and second paragraphs of his answer.
In the first paragraph of his answer, Butner alleged in substance that, on the 9th day of October, 1884, appellees caused an execution to be issued by the proper clerk, upon their judgment against him, and placed the same in the hands of the sheriff of Boone county; that such execution remained in full force until January 29th, 1885, when it was returned by such .sheriff, as shown by his return thereon; that, on the 14th day of January, 1885, such sheriff made a demand upon Butner for the payment and satisfaction of such execution; that Butner on the same day, claiming an exemption of his property from levy and sale under such execution, pursuant to such claim, then and there selected for his appraiser Nelson Lucas, a resident householder of Boone county, and such sheriff selected for appellees, as an appraiser, John Christy, a resident householder of such county; that on the 28th day of January, 1885, such appraisers, having been legally qualified, duly made an appraisement of the articles named in the schedule and inventory of appellant’s property, a copy of
Butner further alleged such facts as showed that the schedule and inventory of his property strictly conformed to the requirements of section 714, R. S. 1881, and contained all the .statute required, and that the aggregate value of all his property was less than six hundred dollars; that he, Butner, was a resident householder of Boone county, and had been such since the issuing of appellees’ execution, and, as such, on January 29th, 1885, he subsci’ibed and was sworn to such inventory and appraisement, as required by law; and that he -claimed at the time, and since, and still claimed, all the articles of property in such schedule and inventory as exempt from levy and sale upon appellees’ execution; that appellees’ judgment, on which their execution was issued, was recovered against him, Butner, on his contract, to wit, upon a promissory note executed by him on November 3d, 1883, and was the same judgment sought to be set off against him by appellees in this suit; that appellant’s judgment against the appel-. lees, which they were seeking to set off against their judgment and to have entered as a credit thereon, was included in his schedule and inventory, and was claimed as exempt by the .appellant, and was so set off to him by such sheriff, and was appraised in such inventory at $50.96, not including an attorney’s fee lien thereon for $15; that on the 29th day of January, 1885, appellant tendered such schedule and inventory of his property to such sheriff, who accepted and made the same a part of his return of appellees’ execution, which he returned nulla bona, on such last named day; and that he was not the owner of the Markland judgment against the appellees, as alleged in their motion, nor had he any interest therein. Wherefore, etc.
In the second paragraph of his answer Butner filed therewith an inventory of all his property, of every kind and de
In section 22 of the Bill of Rights in our State Constitution, it is provided as follows : “ The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.” The General Assembly of this State, at its first session after the adoption of our present Constitution, enacted a law recognizing “ the privilege of the debtor to enjoy the necessary comforts of lifé,” and exempting an amount of property, not'exceeding in value three hundred dollars, owned by any resident householder, from seizure or sale for the payment of any debt or liability growing out of or founded upon a contract, express or implied. Afterwards.
We are of opinion, upon the facts stated in each paragraph of Butner’s answer in the case in hand, that he has a constitutional and statutory right to claim his judgment against the appellees, as a part of his exemption under the law. Ordinarily, no doubt, the appellees would have an equitable claim to have
In the cause under consideration our conclusion is that the trial court clearly erred in sustaining appellees’ demurrers to the first and second paragraphs of Butner’s answer.
The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrers to the first and second paragraphs of answer, and for further proceedings not inconsistent with this opinion.