226 P. 911 | Ariz. | 1924
— A writ of garnishment was levied upon a debt due the appellant Gardenhire from an
This fund was claimed by Gardenhire as exempt, and disallowed. Eevised Statutes of the United States, par. 2296 (U. S. Comp. Stats., § 4551); Eevised Statutes of Arizona, par. 3302, subdiv. 16.
Whether or not the creditors of the homesteader may subject that fund, while it is in the hands of the insurance company, to the payment of their claims against the homesteader, is the only question raised by this appeal. The question is unobscured by any collateral or qualifying issue.
The exempt character of a dwelling-house located upon a federal homestead cannot be questioned. Estate of Harris, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 Pac. 825; Faull v. Cooke, 19 Or. 455, 20 Am. St. Rep. 836, 26 Pac. 662; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 Pac. 50. It is only when in place of a dwelling the proceeds of an insurance policy growing out of the fire, have taken the place of the building itself that any uncertainty arises as to its exemption. In the absence of any statute directly declaring such a fund to be exempt, the courts of most jurisdictions, applying the principle of construction to this statute which is applied to all exemption statutes of a liberal construction designed to give effect to the ultimate purpose and intent of such legislation, have held that the exempt character of the building was transferred to the indemnity arising from its loss, until, at least, it had passed into the hands of the insured. That construction is accepted by text-writers and courts as the general rule, to which there are few exceptions.
In this state, however, the question is open to judicial construction. The legislature has enacted this rule into statute so plain and explicit in its terms as to leave no occasion for uncertainty:
“All moneys arising’ from fire or other insurance upon any property exempt from sale on execution.” Eevised Statutes of Ariz., par. 3302, subsec. 16.
Appellee undertakes to avoid the effect of this statute by assuming that it applies only to such exemptions as are defined by state law. The statute says nothing of the sort. Such a construction involves reading into it something which the legislature has not placed there. The legislature might, of course, have limited the operation of this statute to loss of such property as was declared to be exempt by the state law, as some states have done; but it did not do so.
Both the terms of the statute, and the reason for its enforcement, are quite as applicable to the exemption under the federal statutes as to exemption arising under the state law.
The order disallowing appellant’s claim to exemption, and upon that ground overruling a motion to discharge the writ of garnishment against the California Insurance Company, is- set aside, and the case is remanded to the superior court for such
McALISTER, O. J., and ROSS, J., concur.
