9 Kan. 30 | Kan. | 1872
The opinion of the court was delivered by
E. A. Guptil and Charles Hinton were partners in business. H. McFee and H. Riley obtained a judgment against them, and an execution was issued on said judgment. The officer to whom the execution was directed levied on the partnership goods of Guptil & Hinton, and took them into his possession. Guptil & Hinton in a joint action as partners then replevied them from the officer, claiming that the goods were exempt by law from execution. A trial was had in the replevin case before the court and a jury. The verdict was for the defendants, (the officer and McFee and Riley,) and against the plaintiffs, Guptil & Hinton, and judg
We have all the evidence presented to the court below before us. The facts were undisputed. In fact they were nearly all admitted by the pleadings, and the others were indisputably shown by the evidence. There was no conflict in the evidence. The only question therefore which was to be determined in the court below, and to be determined here, is purely a question of law. That question is, whether partnership property consisting principally of merchandise bought to be sold again for profit is, while still in the hands of the firm, exempt by law from an execution against the firm. If .said property was exempt the judgment of the court below is •erroneous. If it was not exempt, then the judgment is correct. We shall not examine the rulings of the court below in detail, but will simply consider whether the said property was exempt or not. The plaintiffs in error claim that the ■said goods were exempt under the eighth] subdivision of § 3 of the exemption law, which reads as follows :
“Sec. 3. Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: * * * Eighth, The necessary tools and implements of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, and in addition thereto stock in trade not exceeding four hundred Hollars in value.” (Gen. Stat., 473.)
• We suppose it will be admitted that the said goods were mot exempt at all unless they were exempt under the provision •of the statute just quoted. We are of the- opinion that-they wfere not exempt at all, and for the following reasons: First, they were all partnership goods, still in the hands of the firm against whom the execution was issued, and hence said exemption law does not apply: Pond v. Kimball, 101 Mass., 105. Second, they were (principally if not entirely) goods bought to be sold again as merchandise, and were not the goods, the tools, implements, or stock in trade, of a mechanic,
The reasons given in the case of Pond v. Kimball, supra, why partnership goods are not exempt from execution are very strong, and we could not if we would, add anything to them. That our statute exempts property in favor of individual persons only, and not in favor of copartnerships or corporations, we would suppose would hardly be controverted; and yet it seems to be controverted in this very action. The plaintiffs in this action sue jointly, as partners. They claim as partners that the property is exempt. The property has never been divested of its partnership character. Now if it be admitted that our statute exempts property in favor of a copartnership or corporation, will’, it be claimed that such copartnership or corporation may take four hundred dollars worth only of stock' in trade, as an individual may, or will it be claimed that such copartnership 'or corporation may take an amount equal to four hundred dollars for each individual member of the copartnership or corporation, let the number of such members be great or small? And how is it to be determined whether the copartnership or corporation will desire to reserve anything as exempt? May a majority of the members determine the matter? Or may those who own an interest greater than one-half determine the matter? And will the minority, or those who represent the less interest, be governed by the majority, or those who represent the greater interest, or vice versa? If one portion of the members is not to be governed by the other portion, or if four hundred dollars’ worth of the property is to be exempt in favor of some of the members, and not in favor of others, how is the exempted property to be separated from the balance? Can the officer effect the separation? Can any number of the members less than a majority, or can even a majority do it? Some of the members may have a great interest in the copartnership or corporation. Others may have only a small
Upon the other proposition there are no conflicting decisions. It has been decided in Minnesota tqjon a statute almost identical with ours as follows: “The exemption law does not contemplate that all or any of the enumerated articles shall be exenqh in the hands of every citizen without regard to circumstances, but must receive a construction in accordance with its general intent. The words of the eighth section (subdivision) were intended to comprehend a class of citizens who earn their livelihood by the use of tools and implements, in whole or in part. A man may derive his j>rincipal support from some business in the exercise of which tools and implements are necessaiy, and still not be strictly a mechanic or miner. Such persons were intended to be included by the words, ‘or other person/ in this subdivision of the act, and it should read ‘the tools and instruments (inrplemcnts) of every mechanic, minor or other person to ike exercise of lokose trade or business tools or implements are necessary, used or kept for the j>urpose of carrying on his trade or business, etc. And the next clause of the same subdivision, ‘and in
It is probable that if the property levied on in this case, had not been partnership property a very small portion of the same would have been exempt. But as all of it was partnership property, and very nearly all of it merchandise, none of it was exempt. The judgment of the court below is affirmed.