14 Colo. App. 471 | Colo. Ct. App. | 1900
On the 24th day of November, 1894, William K. Burchinell, as sheriff of Arapahoe county, by virtue of a writ of attachment issued in a suit against William Duncan and another, then pending in the county court of that county, attached and took into his possession fifty-one sacks of oats, the' property of William Duncan. Duncan was present when the property was taken, and service of the writ was made upon him at that time. When the officer communicated his purpose to Mr. Duncan, the latter asked him if he had a bond,
The direction of a verdict by the court gives rise to the only important questions in the case. It is provided in our statute concerning exemptions, that working animals to the value of |200, when owned by any person being the head of. a family, as well as the necessary food for such animals for six months, shall be exempt from levy and sale upon any ex
But it is argued that the duty to return the property must be equivalent to, and commensurate with, the right of the debtor to claim his exemption; and that when the claim is not made at the time'of 'the levy, it must be made within a reasonable time afterwards, that is to say, according to the greater number of the adjudications, at any time before the sale of the property under the execution. The conclusion reached may be best expressed in the language of counsel:
“ If, according to the authorities referred to, the appellant had the right to demand a return of the property before the sale (and this doctrine seems to have been concurred in, in Harrington v. Smith, 14 Colo. 38), it follows that the sheriff had an equivalent right to stop proceedings under the execution before sale, and to return the property to the judgment debtor.”
Respecting the time within which the claim must be made the decisions vary, and the variance is occasioned by differences-, in the statutory provisions construed. The cases are collected, and the situation clearly outlined, in 12 American & English Encyclopaedia of Law (2d ed.) 226, et seq. Decisions upon statutes dissimiliar to our own, are not of much assistance to us. Our statute does not, in terms, make it incumbent upon the debtor to claim an exemption at all, but where the officer is not chargeable with knowledge of
Whether the defendant should have returned the property prior to the bringing of this suit was a question to be determined by the jury under the instructions of the court. Unless there were circumstances, undisclosed by the record, which justified further delay, eight days would seem to be ample time for action, but whether it was or not, was for the jury to say. Two days after the notice was given, the attachment creditor, E. L. Oakes, executed a bond to the defendant, requiring him to retain the property, and agreeing to indemnify him against any liability he might incur by refusing to deliver it. A natural inference from the action of Mr. Oakes would be that he did not intend to permit a return of the property, although his purpose may have been only to preserve its status until he had time for. the investigation which he afterwards made. It appears that there was some doubt whether the plaintiff, or J. M. Duncan, who was sued jointly with him, was the owner of the oats. The latter was the former’s son, and was unmarried. The two lived together. If the oats were the property of J. M. Duncan, they were not exempt. As a joint liability was asserted against the father and son, the question of the ownership of the oats was one of some importance. Mr Oakes finely satisfied himself that they belonged to the plaintiff, and directed their return. But he took his first step towards an investigation on the 4th day of December, the day this suit was brought. There is nothing to show that what he did after that day could not as.well have been done before. There may have been valid reasons for the delay, but if there were, the record does not disclose them.
When the oats were brought back, the plaintiff refused to receive them. They were left under a shed, and, sometime afterwards, were removed to the plaintiff’s granary. The
It is plain that the case was not very closely tried. It is probable that important facts might have been elicited, which were not. The counsel who now appears for the defendant in error had nothing to do with the trial. He was not then connected with the case. If he had been, it is safe to suppose that the record would not be in quite its present condition. Upon the history of the case, which the record presents, we have no hesitation in saying that the facts should have been submitted to the jury, and that the court, in directing a verdict, and thus substituting its judgment for theirs, erred.
The judgment is reversed.
Reversed.