Graw v. Manning & Epperson

54 Iowa 719 | Iowa | 1880

Lead Opinion

Bay, J.

i. exemption : ieavutiiootato: tutes. ' ‘ Section 3076 of tbe- Code provides: “"Where the debtor, if the head of a family, has started to leave this State, he shall have exempt only the ordinary wearing apparel of himself and family, and such other property in addition as he may select, in all not exceeding seventy-five dollars in value.”

The question involved in this case is whether the defendant, under the facts found by the court, had started to leave the State, as contemplated in this statute. The court finds that the plaintiff had his wagon close to the house ready to be loaded with goods; that a part of the goods were in boxes out of the house; that the house indicated a state of preparation for removing, and. that the plaintiff made such declarations as to his destination being out of the State as would bind him in the event he had started. It is evident that tho court was of opinion that to constitute a starting to leave tho State it was necessary that the plaintiff should actually have set out upon the journey. If he had caused but one revolution of tho wheels of his wagon, it is probable that the court would have held he had started to leave the State. The word start, however, is not limited to setting out upon a journey or a race; it means, as well, the commencement of an enterprise or an undertaking. It is perhaps not possible to define, in such a manner as to be applicable to all cases, what shall constitute a starting to leave tiie State. Each case must depend upon its peculiar circumstances. The plaintiff in this case had avowed his purpose to remove from the State. In consummation of this purj>ose he had placed his wagon in a position for loading, had boxed some of his goods and removed them from his house, and had placed his house in a condition indicating an intention to remove. The actual carrying out of his goods had been commenced under circumstances indicating an intention to depart as soon as it could be completed. In addition to these facts, he had declared his purpose to be to leave the State. Under these circumstances we think that plaintiff had commenced the undertaking of leaving the State, or, in other words, that he •had started to leave the State as contemplated and provided in the statute. The court erred in holding the property exempt from attachment.

Eeveesed.

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Dissenting Opinion

Adams,' On. J.,

dissenting. The court below found that the plaintiff had not started to leave the State. This is a finding of fact, and we are bound by it unless there are other findings, necessarily inconsistent with it, and less in the nature of a conclusion. The majority hold that there are.

It appears that the plaintiff did certain acts with the view of leaving the State; but I think that tliis was not starting to leave. If mere preparation to leave is starting to leave, then the purchase of horses or au outfit, or the winding up of one’s business with the view of leaving, is starting to leave. I think that there is a well defined, and easily recognized, distinction between preparing to leave the State, and starting to leave. The preparation may continue for months before starting.

It may be thought that where a debtor commences removing exempt property out of the State, it ought to cease to be exempt. Eat the statute does not so provide. Even if it did, such fact would not aid the defendants. The property in question consisted of horses, harnesses and wagon. They had not been moved. The only property moved was household goods, and defendants make no claim to them.

Mr. Justice Eoturook concurs'in this dissent.