150 F. 602 | D.S.D. | 1907
On the 26th day of November, 1906. Henry A. Muller, Esq., referee in bankruptcy, made an order in the above-entitled matter commanding the trustee therein, Robert F. Riemer, to set apart to the copartnership of Novak & Kcfstel $750 in money as a partnership exemption. The trustee, feeling aggrieved by said order, petitioned the referee to certify the question as to whether said Novak & Kostel were entitled to a copartnership exemption to this court for review. Upon this petition the referee has certified the question.
In' the view the court takes of the matter certified, it is not necessary
“The language quoted from section 833, Code Civ. Proc., does not itself give a partnership firm exemption, but was simply meant to limit the construction that might be placed upon the word ‘debtor’ in section 324 before it was amended. When section 824 was amended, so as to bring it into harmony with the Constitution, and specifically named the persons who should bo entitled to the exemptions therein mentioned, the language quoted from section 833 became wholly meaningless, and of no force, and inconsistent with section 324 as amended. In my opinion, the exemptions allowed by the laws of South Dakota can be claimed only by the head of a family, or a single person not the head of a family.”
No legislation has been enacted by the Legislature of the state of South Dakota since the decision in Re Lentz et al., except as follows: In 1903 what is known as the Revised Codes of South Dakota were passed, and became effective July 1st of that year. Section 363 of the Code of Civil Procedure of 1903 is as follows:
“Except those made absolute, the exemptions herein provided for must not be construed to apply to the following persons, namely: (1) To a corporation for profit. (2) To a non-resident. (8) To a debtor who is in the act of removing with his family from the state; or (4) who has absconded, taking with him Ms family, (¡>) A partnership firm can claim but one exemption of seven hundred and fifty dollars in value, or the alternative property, when so applicable, instead thereof, out of the partnership property, and not a several exemption for each partner.”
This section re-enacted section 333 of the old Code of Civil Procedure, also known as section 5138 of the Compiled Laws of Dakota. The only change made in the section was in regard to the amount of the exemption in subdivision 5. By section 363 the amount of the exemption in subdivision 5 was changed from $1,500 to $750. The reenactment of section 333 of the Code of Civil Procedure (Comp. Laws 1887, § 5138) in the language found therein was a very careless piece of legislation. For instance, section 363 provides that, except as to those made absolute, the exemptions provided by section 346 of the Code of Civil Procedure of 1903 shall not be construed to apply to a corporation for profit. Why should the Legislature deem it necessary to declare that section 346 did not include a corporation for profit, when by the terms of the section referred to the exemptions therein granted are limited to two classes of debtors, namely, a debtor who is the head
The laws of South Dakota not having given a partnership exemption, the order of the referee complained of is erroneous, and must be vacated and set aside.