Heath v. Keyes, 35 Wis. 668

Heath v. Keyes

35 Wis. 668 | Wis. | 1874

Cols, J.

The principal question in this 'case is, Was the property seized on the attachment against Hollister exempt under the statute? It consisted of two feather beds, four quilts, four feather pillows and two cherry bedsteads. The plaintiff himself testified that when he made the levy on this property, the beds and bedding were put up, and had the appearance of being used by the debtor and his family. He further says that he saw in the debtor’s house only one or two beds besides the two which he levied on, and that these had no feather beds on them. He had a conversation with the debtor's wife at this time, as to whether the beds were exempt, and he thinks he told her “ they were entitled to one bed for each two persons in the family.” And the officer, acting doubtless on this view of the statute, made the levy in question. It is by no means certain that even under this construction of the law the property would not be exempt. But, however this may be, we are clearly of the opinion that, on the facts appearing on the trial, the beds and bedding were not liable to be seized on attachment or any final process issued from any court. *672Among other personal property which the statute declares shall not be liable to attachment or sale on execution, are the following enumerated articles: “all beds, bedsteads and bedding kept and used for the debtor and his family.” Subd. ■6, sec. 32, ch. 134, R. S. Now if the beds, bedsteads and bedding were kept and used (as the officer says they appeared to be) for Hollister and his family, then by the express language of this provision they were exempt.

But it is suggested by the plaintiff’s counsel, that the debtor had beds and bedding other than the ones levied on, and that there is no reason for saying that all are exempt. It is a sufficient answer to this suggestion to say that there is nothing in the case which warrants the assumption that the beds and bedding claimed by the debtor were excessive, and more than he was entitled to by law. It appears that he kept and used them with the other straw beds for the use of himself and family; and we must presume they were no more than were necessary for their comfort and convenience. It is a cardinal rule in the construction of statutes of this character, that they are to receive a liberal interpretation. Observing this rule of construction, we must surely hold, upon the evidence, that the beds and bedding in controversy, being kept and used for the debtor and his family, were presumptively exempt, and it devolved upon the plaintiff the duty of showing (if such were the fact) that the exemption claimed was excessive.

When the plaintiff seized the property under the attachment, Hollister and his codefendant gave a receipt to deliver it on demand, and the property was not taken from the possession of the debtor. It is now claimed that the debtor, by thus receipting for the property, waived his exemption, and is estopped from afterwards claiming it as exempt. We cannot assent to the correctness of this position. It satisfactorily appears from the evidence, that Hollister claimed that the property was exempt when it was seized on the attachment. *673The fact that he gave the receipt rather than have the beds removed from his house and taken into the possession of the officer, ought not to prejudice his rights. Suppose Hollister had delivered the property to the plaintiff on the receipt, could he not at once have brought his action to recover possession of it again upon the ground that it was exempt? We know of no principle of law which would prevent him from doing this. Possibly cases might arise where the debtor would not be permitted to claim property as exempt after having given a receipt to the officer for its delivery. It might be a fraud upon the law to allow him to make such a claim. But there are no facts or circumstances in this case which show that Hollister did anything to mislead the officer in regard to his property, or which could in any way prejudice the rights of his creditor. He was not bound to relinquish his exemption for the benefit of his creditor, and the evidence shows clearly that he did not when the property was seized. It seems to us there is no ground for applying the doctrine of estoppel in pais to the conduct of Hollister.

This action was brought upon the receipt, and the defendant Keyes showed that the property was not in his possession, but remained in the possession of the debtor, who claimed it as exempt. This was a perfectly valid defense uncler the rulings in Main v. Bell, 27 Wis., 517, and Connaughton v. Sands, 32 id., 387.

In this case, the wife of Hollister was allowed to be a witness for the defendant Keyes, in the justice’s court, against the objection of the plaintiff that she was incompetent; and we are informed by the counsel that the circuit court reversed the judgment of the justice on account of the error in admitting her testimony. It is claimed by the counsel of Keyes that in any event she was a competent witness, because her husband was not a real, but only a formal party to the record. Hollister was not served with process, and made no appearance ; and it is said that the judgment against Keyes would not conclude *674Rim, nor could it be used as evidence against him in any subsequent action. Therefore, it is argued, Mrs. Hollister was not a witness, either for or against her husband. To this it is answered that the judgment in this action would be evidence of the extent of the plaintiff’s demand against Hollister in a subsequent suit brought against him, by virtue of sections 184 and 186, ch. 120, Tay. Stats. This raises a very important question as to the meaning and proper construction to be placed upon these provisions of the statute. We do not deem it necessary, however, to pass upon that question in the case before us. For, assuming that Mrs. Hollister was not a competent witness in the cause, we still think her testimony could not possibly have prejudiced the plaintiff. The object of her testimony was to show that the property was exempt, and was claimed to be exempt by her husband when seized on the attachment. -It abundantly appears by other evidence that the debtor claimed that the beds and bedding were exempt; and we have already alluded to the testimony, of the plaintiff, where he says that they were put up in the house of Hollister, and appeared to be kept and used for the family. On the plaintiff’s own showing, therefore, prima facie, the property levied on was exempt, and the testimony of the wife could do him no harm, even if improperly admitted. The judgment of the justice should not have been reversed for an immaterial error, which could have injured no one. This rule is well settled.in the cases cited on the brief of counsel for the defendant Keyes.

It follows that the judgment of the circuit court must be reversed, and that of the justice affirmed.

By the Gourt. — So ordered.