12 S.D. 428 | S.D. | 1900
This action in claim and delivery, to recover from the sheriff certain personal property upon which lie had levied executions, and of which plaintiff, in her complaint, claims to be owner, resulted in her favor, and the defendant appeals. The value of the property seized, consisting mainly of farm horses, with their harnesses, and a wagon, together with all personal property enumerated in her schedule of ex
One execution is upon a judgment against respondent and her husband jointly, and the other upon a judgment against her alone; and within the time allowed by law she claimed her exemptions, by serving upon appellant a schedule of all the property belonging to both herself and husband, including that seized, and notified him of the appointment of an appraiser to act in her behalf, and an appraisement was demanded. In this verified schedule of personal property, respondent states that the same belongs to herself and husband, Joseph Ecker, and “is exempt from levy and sale on execution, and affiant hereby claims the same as exempt from levy and sale, upon the ground that the value of the same, and of the whole thereof, does not exceed the sum of seven hundred and fifty dollars; that affiant is the wife of said defendant, Joseph Ecker, and has been his wife for the period of several years past; that said Joseph Ecker has been adjudged insane by the board of insanity of said Brookings county in the year 1896, and was committed by the judge of the county court of said county of Brookings to the hospital for the insane at Yaukton, in said state of South Dakota, where he is still confined.” Her schedule and demand for an appraisement were wholly disregarded by appellant, and the failure to comply with the following is the only reason assigned for his refusal to have the property appraised. “To Maria Ecker: You are hereby demanded to furnish me forthwith a statement of property included m the schedule of yours, dated September 24th, 1897, served upon me
To the point that the wife is entitled to make such claim out of her husband’s property, see Noyes v. Belding, 5 S. D. 603, 59 N. W. 1069; Meyer v. Beaver, 9 S. D. 168, 68 N. W. 310. Where exempt property is involved the controlling point in claim and delivery is the right of possession, rather than the right of property; and as against-appellant, whose duty it was to have an appraisement made, respondent has shown by uncontroverted evidence a right of exclusive possession of all the property described, and she was entitled to maintain the action. Sprague v. Clark, 41 Vt. 6; Moorman v. Quick, 20 Ind. 67; Eldridge v. Sherman, 70 Mich. 266, 38 N. W. 255; Lazard v. Wheeler, 22 Cal. 139. Judge Cooley, in speaking for the court in Tandler v. Saunders, 56 Mich. 142, 22 N. W. 271, says, "One who has the right to use property at will can replevy it from any wrongdoer. — as, for example, from a sheriff’s officer who has taken it on execution issued against auother person J’ The constitutional declaration is that to all heads of families a reasonable amount of personal property, the kind and value of
Under the view we have taken, the rulings of the court relating to evidence admitted and excluded become immaterial, as the result could not have been different. There being no reversible error, the judgment appealed from is affirmed.