118 P. 1016 | Or. | 1911
delivered the opinion of the court.
It is contended that the testimony given by plaintiff’s witness did not show that he was entitled to the possession of the horses as property exempt from execution, and by reason thereof an error was committed in refusing to grant a judgment of nonsuit; The testimony discloses that in 1909 Gollnick came with his family to Wallowa County, Oregon, where he leased a farm, which he cultivated. He- purchased in that county a tract of land, which he conveyed to H. C. Laird in exchange for four horses, but having no feed for them they were left with Laird, who, pursuant to the service of a copy of a writ
It also seems that soon after the attachment of the animals Gollnick left Oregon and went to California; but it does not appear what business he is pursuing in the latter state, but is it clearly indicated what use he intended to make of the horses he claimed as exempt from execution. Laird testified that Gollnick stated he had a brother-in-law at Walla Walla, Washington, who wanted to trade for horses to use in the dray business, saying that four head were needed for that purpose. This witness further said that the plaintiff herein declared that his wife expected to fall heir to 200 acres of land near Pendleton, Oregon, and that if she inherited it, he wanted the horses to use in cultivating the tract. Laird also stated upon oath that Gollnick never had actual possession of either of the horses, and he understood from the plaintiff that he intended to go to the State of Washington when a sale of his land was effected.
The material part of the statute rendering certain chattels immune from levy or sale, without the owner’s consent, are as follows:
“The following property ■ shall be exempt from execution, if selected and reserved by the judgment debtor or his agent at the time of the levy, or as soon thereafter before sale thereof as the same shall be known to him, and not otherwise: * * 3. The * * team * * necessary to enable any person to carry on the trade, occupation or profession by which such person habitually earns his*316 living, to the value of $400.00. * * The word ‘team’ in this subdivision, shall not be construed to include more than one yoke of oxen or a span of horses or mules, as the case may be.” Section 227, L. O. L.
The evidence disclosed that, prior to the attachment of the horses, the plaintiff had been engaged in farming, and that he had made some preparation for cultivating
The defect in this respect was not cured by the testimony introduced by the defendant, and such being the case it affirmatively appears that there is no evidence to support the verdict, and it is impossible to say with certainty what judgment should have been rendered, as .required by the organic act,- Section 3, Article VII, Constitution of Oregon, as amended November 8, 1910. Laws 1911, p. 7.
As it is impossible to remedy the defect to which attention has been called, the judgment is reversed, and the cause remanded for such further proceedings as may be .necessary, not inconsistent with this opinion.
Reversed.