19 Nev. 149 | Nev. | 1885
Lead Opinion
By the Court,
The appeal in this case is taken “from an ex parte order made in said matter on the eighth day of March, Á. D. 1884, by the judge of said court, setting apart for the use and benefit of said insolvent and his family, as exempt from execution, two gray horses and their harness, and one close carriage; and also * * * from two certain orders made * '* * on the thirty-first day of May, A. D. 1884, finally exempting and setting apart said horses, harness, and carriage for the benefit of said insolvent and his family, as exempt from execution; and denying said creditors’ motion to vacate and set aside said ex parte order, and sustaining said insolvent’s demurrer to said creditors’ motion, and denying so much of said assignee’s petition for authority to sell the property of said insolvent as prayed for authority to sell said two gray horses and their harness, and said close carriage.”
Respondent moves to dismiss this appeal on the ground that it is taken from several different orders, and there is but one undertaking on appeal. This motion must be denied. It was not necessary to specify all the orders and rulings of the court declaring that the property in question was exempt from execution. An appeal from the order made on the thirty-first of May, finally exempting and setting apart said horses, harness, and carriage, would have been sufficient to present the only question involved in this appeal. But the fact that all the rulings of the court upon this question were inserted in the notice of appeal (including some orders that were not appealable) does not change the character of the appeal. All the orders relate to the question whether the property specified is or is not exempt from execution, and they must be treated and considered as one order upon that subject, requiring but one undertaking to perfect the appeal. The record shows: “That said Ezekiel Edgecomb is, and for more than twenty years last past has been, a livery-stable keeper, and for many years prior
The statute, under which respondent’s claim of exception is based, reads as follows: “The following property shall be exempt from execution: * * * two oxen, two horses, dr two mules, and their harness, and one cart or wagon, by the use of which a cartman, huckster, peddler, teamster, or other laborer habitually earns his living.” (1 Comp. L. 1282.)
Is respondent an “other laborer” within the meaning of that term as used in the statute? The legislature evidently intended that the construction to be given to these words should be confined to other laborers ejusdem generis with those named. Language, however general in its form, when used in connection with a particular subject-matter, must be presumed to be used in subordination to that matter, and should be construed and limited accordingly. It is not protended that respondent comes within any class named in the statute. In order to be entitled to the benefits of the exemption law, he must, therefore, show that he was engaged in some business in which, by the use of his horses, harness, and carriage, he habitually earned his living. He has failed to do so. The record shows that his business was that of a livery-stable keeper, which is plainly distinguishable from that in which cartmen, hucksters, peddlers, or teamsters are engaged. If the legislature had intended to include livery-stable keepers, that class would
A livery-stable keeper is not a teamster, or entitled to the exemptions of a teamster, simply because he drives his own team in carrying persons around town. Yet, “in common speech, a teamster is one who drives a team; but, in the sense of the statute, every one who drives a team is not necessarily a teamster, nor is he necessarily not a teamster, unless he drives a team continually. In the sense of the statute, one is a teamster who is engaged with his own team or teams in the business of teaming; that is to say, in the business of hauling freight for other parties, for a consideration, by which he habitually supports himself and family, if he has one. While he need not, perhaps, drive his team in person, yet he must be personally engaged in the business of teaming habitually., and for the purpose of making a living by that business. If a carpenter, or other mechanic, who occupies his time in labor at his trade, purchases a team or teams, and also carries on the business of teaming by the employment of others, he does not thereby become a teamster in the sense of the statute. So of the miner, farmer, doctor, and minister” (Brusie v. Griffith, 34 Cal. 306), or livery-stable keeper.
In Dove v. Nunan, the plaintiffs were engaged, in business as coal dealers, and used a team, consisting of two horses and a wagon, by hauling coal and other commodities for other people for hire, and the proceeds therefrom were expended in their support. They also occasionally used the team in hauling coal and wood from their own coal-yard to the place where they retailed the coal. Upon these facts the court said: “The fact that the plaintiffs used the horses and wagon in question as teamsters for hire, and that they expended the money thus received in support of themselves and their families, did not exempt the property from execution. In order to entitle a party to claim as exempt from execution two horses, * * * he must show that he is a cartman, * * * huckster, peddler, teamster, or other laborer, and that he habitually earns his living by the use of such horses.” (62 Cal. 400.)
It is a matter of common knowledge that the particular busi
The rulings of the district court exempting the property from execution are hereby set aside, and the cause remanded to the district court for such further action as may be necessary hi accordance with this opinion.
Dissenting Opinion
dissenting:
I think the judgment of the court below should be affirmed. As to the carriage, it is claimed by counsel for appellant that this court is bound to follow the case of Quigley v. Gorham, 5 Cal. 418,
It is the policy of our constitution and laws to allow debtors,
I have no doubt that the legislature intended to exempt two animals, with their harness or other equipments, and any suitable vehicle, by the use of which any person habitually earns his living, and to the exercise of whose business such animals, etc., are necessary. No good reason can be given why a carrier of passengers should not have the means of support as well as the carrier of goods, wares, and merchandise. He is one of a class of persons whose living depends upon the use of a team, and that class the legislature intended to protect by the statute under consideration. To say that the carrier of passengers is not entitled to be protected simply because the vehicle named is a “ wagon,” is following the letter rather than the spirit of the statute; it is considering the wording instead of the object of the statute. In view of the liberal construction everywhere given to exemption laws under constitutions and statutes like ours, the word “ wagon ” is sufficiently
Many analogous cases may be cited showing the spirit and policy of such statutes. In Arkansas, where the statute extended the exemption to “free white citizens,” the word “citizen,” as there used, was held to be equivalent to “resident” or “inhabitant.” (McKenzie v. Murphy, 24 Ark. 155; and see Cobb v. Coleman, 14 Tex. 594.) Webster defines a “team” to be “two or more beasts harnessed together to the same vehicle for drawing”; yet under the term-“team,” in exemption statutes, in numerous instances, a single animal has been held exempt. In those cases the courts said the intent of the legislature, was to protect the debtor in the use of his means of making a living; and the intent that would exempt a whole team would also exempt half. They followed the spirit rather than the letter of the statute. And so, many courts have made the word “ team ” include the vehicle drawn by it, and the term “horse” to include a saddle, bridle, stake-rope, and martingale, although the latter articles were not mentioned in the statute, upon the ¡principle that an exemption of a horse carried with it everything essential to its beneficial enjoyment.
In Mundell v. Hammond, 40 Vt. 641, two calves nine months old were saved to the debtor, under a statute exempting “ a yoke of oxen or steers.” In Mallory v. Berry, 16 Kan. 293, a wild, unbroken steer, twenty months old, was held exempt under a statute exempting “ a yoke of oxen.” In Favors v. Glass, 22 Ala. 624,
Believing that the decision in question is opposed to the spirit and policy of our constitution and laws, and that it does not express the intention of the legislature, I do not feel bound to follow it. As I understand the decision of the court, .the entire property in question is held not to be exempt, because
This team was set apart for a use entirely different from that to which the others were put — as much so as it would have been if kept for the .same purpose at another stable in a different part of the town. If respondent had had this team only, or a dozen others like it,, and had used the one in question, or all, as he did this, no'one could say he kept a livery-stable. If he had kept in his stable a span of horses simply, and only to haul merchandise from the depot to stores, those horses would not have been a part of his livery-stable any more than a yoke of oxen kept for the same purpose would have been. Livery-stable keepers often do many things outside of that business, because it is convenient and profitable to do so.
There is a livery-stable kept in Carson by men who also run a daily stage to Lake Tahoe. The stage horses are kept at the stable, but they are used exclusively in stage work — a business entirely foreign to livery business proper. Should a two-horse stage team be claimed as exempt under the statute quoted in the court’s decision, it does not seem to me that it could be regarded as a part of the livery-stable, or that the validity of a claim of exemption would depend upon whether livery-stable keepers are entitled to an exemption.
There is a man in Carson who runs an express wagon. He carries trunks and packages to and from the depot and elsewhere. He has two horses, their harness, and a wagon, by the use of which he habitually earns his living. . His team is now
Oftentimes a man is obliged, and he has always a right, to carry on different kinds of business. He may be a carpenter .and joiner and a painter, a wagon-maker and blacksmith, a physician and dentist, a lawyer and minister. Whether persons so engaged in two different kinds of business can claim an exemption for each occupation or profession need not be discussed, because it is not shown that respondent claimed or had the benefit of any exemption except the team in question, and such other property as is accorded to all debtors regardless of their occupations. But the mere fact that a debtor carries on two or more kinds of business or professions does not deprive him of all-exemptions. Nor, under our statute, must the exempted articles belong to the business in which he is 2mncipally engaged, as in the case under the Michigan statute. (Morrill v. Seymour, 3 Mich. 67.) In this state, I think that when a person engages in different pursuits, either of which, if pursuing that avocation alone, would entitle him to an exemption, he may, at least, choose from which business the articles exempted shall belong; and if he is engaged in two kinds of business, only one of which entitles him to favor, he may claim the exemption given under that one, the same as though he was engaged in no other. The fact that the use to which the property in dispute was put is “incidental to and con
With this property, respondent habitually earned his living in part, not as a livery-stable keeper, but as a private carrier of persons and passengers, and it is just as much entitled to exemption as it would have been if he had not run a livery-stable with other property. If it is true, as the court decides, that a livery-stable keeper is not entitled to an exemption, then that fact is an additional reason in favor of the view I take; because otherwise, respondent will be deprived of all instrumentalities of productive labor, while other laborers, who habitually earn their living by the use of horses, oxen, or mules, and to the exercise of whose business such animals are necessary, may enjoy property that is just as necessary for his support as it is to theirs.
“ The manifest requirement of the constitution is, that the exemption laws should be so framed that all classes of debtors should, as nearly as may be, participate equally in their benefits. We believe our exemption laws were framed and enacted in the spirit of that requirement. Looking through these statutes, we find no adequate provision in favor of merchants or shop-keepers as a class, unless it is contained in the statute under consideration. Their little stock in trade.may be as indispensable to the support of their families as are the tools of the mechanic, or miner, the press and type of the printer, or the library of the lawyer. Why should they not have the same protection as the others? And when we find language in a statute which may fairly be construed as giving them the same protection extended to other classes of debtors, why should not that construction be adopted?” (Wicker v. Comstock, 52 Wis. 318.)
My opinion is, that respondent, as a carrier of passengers, is entitled to the exemption claimed, because, in the sense of the statute, he is a “ laborer ” who habitually earns his living by the use of the property in dispute, although he is also a livery-
“The words ‘used by the debtor in obtaining the support of his family’ are general, and restricted to no particular mode of use. They are answered when the team is hired to others for a compensation, which compensation goes into the general fund to support the family, as well as where the debtor himself goes with the team as its driver, and adds the earnings of his labor to that'of the team. (Washburn v. Goodheart, 88 Ill. 231; Elder v. Williams, 16 Nev. 420.)
But it is said that, in the sense of the statute, respondent is not embraced by the words “ other laborer,” because a livery-stable keeper is not ejusdem. generis with “ cartman, huckster, peddler, and-teamster.” The four words used in the statute are not themselves ejusdem generis except in one sense. They have but one characteristic common to all, which is, that they specify persons in whose business a team is absolutely essential. To that extent only were they intended to be ejusdem generis. What other common feature is there between a cartman or teamster, and a peddler? To the extent just stated, a livery-stable keeper is ejusdem generis with those named. In U. S. v. Lawrence, 13 Blatchf. 212, the defendant was indicted for forgery -under a statute which provided a penalty for the forging of “ any bid, proposal, guaranty, official bond, public record, affidavit, or other writing.” The court said: “The first position taken in support of the demurrer is, that the rule of construction, according to which general words are restricted by particular words, should be applied to this statute, and the
In Wicker v. Comstock, supra, the court construed a statute which exempted “the tools and implements,.or stock in trade, of any mechanic, miner, or other person, used or kept for the purpose of carrying on his trade or business, not exceeding two hundred dollars in value.” It was claimed by the defendant that the term “or other person”’ should' be interpreted to mean only a person ejusdem generis; that is, an artificer of some sort, and not a merchant merely.. The court said.:. “ * * * We conclude that the maxim noscitur a sociis is satisfied by restricting the operation of the statute to those- debtors who, although not artificers, must necessarily keep and use a stock in trade in carrying on their business; and who are not protected by other special provisions of the statute. This construction entitles the plaintiff to the exemption claimed.” (And see McAbe v. Thompson, 27 Minn. 135; Burgess v. Everett, 9 Ohio St. 426.)
The court is of opinion that livery-stable keepers would have been named in the statute if the- legislative intent had been to include them. I do>not think there was any effort-or desire to name all, or nearly all1,, whom the statute was intended to favor. It would not be difficult to designate many not mentioned who come within the statute.
For the reasons above stated, I dissent from the decision of the court.
63 Am. Dec. 139.
54 Am. Dec. 419.
58 Am. Dec. 272.
33 Am. Dec. 210.