126 Ind. 387 | Ind. | 1890
— The complaint in this action sounds in tort. The appellant is sued in his individual capacity for an alleged wrong charged to have been committed under color of his office as sheriff of Elkhart county.
Three several errors are assigned: the first is that the court erred in overruling the demurrer to the complaint, and the second in sustaining the demurrer to the answer.
The third is embraced in the first and second, and need not be stated.
b-After carefully considering the complaint we are satisfied that it states a good cause of action.
It has been held many times by this court, since the adoption of our civil code, that nothing more than certainty to a common intent is required in a pleading.
The complaint under consideration comes up to this standard, and the facts stated disclose a cause of action.
It appears that Henry Bemenderfer, as executor of the last will of George A. Snider, on the 22d day of June, 1887, recovered a judgment in the Elkhart Circuit Court against the appellee for $2,070.43, and for costs, in an action on a promissory note executed by the appellee to the testator, and on the 14th day of February, 1888, execution issued upon the judgment, and was placed in the hands of the appellant as sheriff of said county ; that, on the — day of February, 1888, the appellant levied said execution upon certain real estate belonging to the appellee (describing it) of the value •of $7,000; that the appellee was then, and still is, a resident householder of said county, and entitled to claim the benefit of the exemption laws of the State of Indiana, and on the 24th day of March, 1888, made out and delivered to the appellant an inventory covering the provisions of the statute, and demanded that all of his personal property contained in said schedule, amounting to $257 in value, be set off to him
It is then averred that the appellant refused to recognize the appellee’s claim to an exemption, and went on and sold said real estate, received the purchase-money therefor, and refuses to pay any part thereof to the appellee.
It appears that the judgment is founded upon a debt growing out of contract.
A promissory note is a contractual obligation, and, as already indicated, the judgment was rendered upon a promissory note.
We think it sufficiently appears that a demand was made in proper time, and that the appellee was entitled to some relief whether he was entitled to the $600 exemption claimed or only to a $300 exemption.
This brings us to the court’s ruling, brought in question by the second alleged error.
The answer, in short, averred that the execution referred to in the complaint was an alias ; that, as against the first or original execution, the appellee demanded an exemption of $600, and filed his inventory and schedule with the appellant, and, pursuant to such demand, $600 in personal property was set off and delivered to him, and the personal property referred to in the complaint is a part of the exemption of which the appellee has had the benefit.
It is well settled that exemption laws are to be liberally construed, with a view to favoring the judgment debtor, and that the exemption is not alone for the benefit of the debtor, but for his family as well, and that such construction should
Applying this construction to our statute, and the constitutional provision upon which it rests, the fact that the appellee had already had one exemption did not cut off his right to another if made in good faith.
If the demand for the second exemption was not made in good faith, the burden was on the appellant to allege and prove the fraud. Weis v. Levy, 69 Ala. 309.
The right of exemption did not exist at common law. 7 Am. and Eng. Encyc. of Law, 130, note 4.
As the right is a mere statutory or constitutional one, the character of the exemption and circumstances under which it may be claimed depend upon the construction to be given to the statute or constitutional provision upon which the right depends. Robinson v. Hughes, 117 Ind. 293.
"We are, therefore, not inclined to follow the rule as stated in Herman Executions, 112, and Thompson on Homestead and Exemptions, section 856, and Vogelsong v. Beltzhoover, 59 Pa. St. 59.
Our constitutional provision is 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.” Article 1, section 22. See section 67, R. S. 1881.
The statute is as as follows: “An amount of property not exceeding in value six hundred dollars, owned by any resident householder, shall not be liable to sale on execution or any other final process from a court, for any debt growing out of or founded upon a contract, express or implied, after the taking effect of this act.” Section 703, R. S. 1881.
The sole question involved by the record in this case is one of new impression in this court, but the conclusion which we have reached seems to be in harmony with the intention of the framers of the Constitution, as manifested by the humane provision to which we have referred, found in that instrument.
We find no error in the record.
Judgment affirmed, with costs.
