49 Ark. 136 | Ark. | 1886
Driggs & Co.’s bank recovered a judgment against Norwood in the Circuit Court and caused an execution to be levied on a carriage and harness. The levy was made February 7, 1884, and the sale was advertised for the 18th of the same month. The property was seized at the county seat; and Norwood, living at the distance of eighteen miles, was not apprised of such seizure until it was too late to give the five days’ notice of filing his schedule and claim of exemptions, contemplated by section 3006 of Mansfield’s Digest. He thereupon rushed into equity to enjoin the sale. His bill set forth the circumstances, which prevented his claim from being made earlier and in the regular way. And it alleged that the value of the property levied upon, together with that of all other personal property owned by him, was not equal to his constitutional exemption.
A temporary injunction was awarded and a restoration of the property was directed.
A demurrer to the bill having been overruled, the defendants answered and insisted on the lien acquired by their levy. But the injunction was made perpetual.
The pleadings and evidence show plainly enough that Nor-wood is entitled to claim this property as exempt from execution. But the statutory method for making the claim is exclusive of all others. In Settles v. Bond, ante, we decided that replevin would not lie for the exempt property, not because it was in custodia legis, but because, until a schedule was filed, the execution defendant was not pursuing the remedy pointed out by the statute.
In Nichols v. Claiborne, 39 Tex., 363, it was held that a sale of exempt property might be restrained by the judgment debtor. But this seems to be contrary to principle. And it is difficult, if not impossible, to conceive of any state of circumstances which would call for the interference of a court of equity, since adequate relief may generally be had, either by superseding the sale under statutory provisions, or by an action at law. 1 High on Injunctions, sec. 122; Baxter v. Baxter, 77 N. C., 118.
Granting that Norwood was prevented, by causes over which he had no control, from giving the required notice and filing his schedule before the day of sale, yet he had only to appiy to the Judge of the Circuit Court' — the same Judge who granted the preliminary injunction — by petition setting forth the circumstances; and if his excuse was deemed sufficient, it would have been the duty of the Circuit Judge to order further proceedings under the execution to be stayed until the debtor’s claim of exemption could be made and determined. Mansf. Dig., sec. 2988.
The decree is reversed and the bill dismissed.
