Haefer v. Mullison

90 Iowa 372 | Iowa | 1894

Bobinson, J.

The petition alleges that the corn in controversy was raised on land in this state which is ■owned by the plaintiff, and which had been purchased with money he had received as a pension from the general government, and that the corn was exempt from seizure under the execution. The ground of the demurrer was that the petition did not state a cause of action, for the reason that it shows that the corn was not exempt from execution. The demurrer was sustained by the court (Judge Smith presiding) on the fifteenth day of April, 1892, and to that ruling the plaintiff excepted. On the third day of the next month the court (Judge Thornell presiding) rendered judgment as follows: “This case coming on for hearing, and the plaintiff electing to stand on his petition without amendment thereto after demurrer sustained, the plaintiff’s petition is dismissed, and judgment for costs for defendants.” To that judgment no exception was taken.

I. The appellees claim that the appeal can not be considered on the merits, because no exception was taken to the judgment. The plaintiff does not respond to that claim, but we do not think that it can be sustained. It was held in Barnhart v. Farr, 55 Iowa, 366, 7 N. W. Rep. 644, that an exception to the judgment was not necessary, where one had been taken to the conclusion o.f law upon which it was founded. In Aldrich v. Price, 57 Iowa, 155, 9 N. W. Rep. 376, and 10 N. W. Rep. 339, it was held that, where the overruling of a motion which asked for judgment was excepted to, it was unnecessary to except to the judgment afterward rendered, to have it reviewed on appeal. See, also, Gulliher v. Railway Co., 59 Iowa, 419, 13 N. W. Rep. 429. In this case the judgment was founded upon the ruling on the demurrer, and, an exception having been duly taken to that, no exception to the judgment was required, to entitle the plaintiff to-a review of the ruling by this court. This conclusion is not in conflict with the cases of Redding v. Page, 52 Iowa, 406, 3 N. W. Rep. 427, and Chapman v. Lobey, 21 Iowa, 300, cited by appellees.

II. The petition shows that the indebtedness on account of which the execution in question issued was incurred in May, 1889, and afterward. The' corn which was taken under the execution had been raised on the land, and was standing in the field, but it is not claimed that it was not matured and ready to be harvested; and, for the purposes of this appeal, it must be assumed that it had ceased to be a part of the land upon which it was grown. The appellant relies upon chapter 23 of the Acts of the Twentieth G-eneral Assembly to sustain his claim to the corn. The first two sections of that act are as follows:

“Sec. 1. All money received by any person resident of the state, as a pension from the United States government, whether the same shall be in the actual possession of such pensioner, or deposited, loaned or invested by him shall be exempt from execution or attachment, or seizure by or under any legal process whatever, whether such pensioner shall be the head of a family or not.

“Sec. 2. The homestead of every such pensioner, whether the head of a family or not, purchased and paid for with any such pension money, or the proceeds or accumulations of such pension money, shall also be exempt as is now provided by the law of this state in relation to homesteads; and such exemption shall also apply to debts of such pensioner, contracted prior to the purchase of such homestead.”

In Diamond v. Palmer, 79 Iowa, 578, 44 N. W. Rep. 819, it was held that section 1 exempts only the pension money actually invested, and that the claim that it exempts, not only animals in which it is invested, but also the increase of such animals, was too broad. The section, in terms, exempts the money received as a pension, whether it is in the actual possession of the pensioner, oris deposited, loaned or invested by him. It is the money, or that in which it is invested, which is exempt by section 1, and not the proceeds and accumulations of it. Section 2 exempts the proceeds and accumulations, when invested in a homestead. When the land was purchased, and the money was paid for it, the investment was completed. The crops thereafter grown on the land were the products or proceeds of the land and of the seed planted, of the labor performed in raising them, and of the forces of nature which aided in their growth, and were not exempt, as property in which the pension money had been invested. It is proper to state, in this connection, that it is not shown that the land upon which the corn was grown was the homestead of appellant. The petition states that he was the owner of and lived upon certain land in Fremont county, which he purchased with pension money received from the government of the United States, and that the corn had been raised upon the land. But it is not stated in the petition nor claimed in the argument, that the land was the homestead of plaintiff, nor that he resided thereon when the corn was grown. We can not presume that it was his • homestead at that time, and the rule announced in Morgan v. Rountree, 88 Iowa, 249, 55 N. W. Rep. 65, is not shown to be applicable to this case. The judgment of the district court is aeeibmed.