22 Haw. 165 | Haw. | 1914
OPINION OF THE COURT BY
Trover for the conversion of three sewing machines claimed by plaintiff as exempt under section 1831 of the Revised Laws of the Territory. The taking was admitted. Defendant justified as high sheriff of the Territory of Hawaii under a writ of attachment against the plaintiff, the validity of which writ was not questioned. The parties were at issue to the court, trial by jury being waived, and upon the close-.of the plaintiff’s case the defendant moved for a nonsuit on the grounds (1) that the court was without jurisdiction in that the title to said property was and is in the United States district court sitting in bankruptcy, and all questions concerning the same are within the exclusive jurisdiction of that court; (2) that the plaintiff had not proved any value of any article; (3) that there was no evidence that said articles were exempt from levy and sale under execution. The court granted the motion, expressly predicating its ruling upon the first ground stated in the motion. To the order granting the motion for nonsuit, the judgment entered thereon and-the written decision of the court, thereafter filed, plaintiff duly excepted. The transcript of evidence is not made a part of the bill of exceptions but the facts, as expressly found by the court below and incorporated in the decision, which is made a part of the record here, are as follows: “That the plaintiff was on the 19th day of August, 1913, and had been for many years prior thereto, a tailor in Honolulu, that on said day, the defendant who was then, and now is, the High Sheriff of the Territory, levied upon and took into his possession, under a writ of attachment, about the validity of which writ no question is raised, certain chattels belonging to the plaintiff, among which chattels were three Singer sewing machines of the value of $25.00 each. When this attachment
The sole question presented by the exceptions is whether the lower court erred in granting the defendant’s motion for a non-suit. Counsel for appellant concedes in his brief that unless the sewing machines, the conversion of which is sued for, were and are, in fact, exempt the plaintiff’s case must fall. He thereupon cites numerous aiithorities in support of his contention that such articles were and are exempt and argues that a determination of that question is essential. That point was not passed upon by the lower court, and under the exceptions, as presented in this court, is not properly before us. The only question raised by the exceptions is whether or not the court below erred in granting the motion for nonsuit. In other words, the important question as presented by the exceptions is, not whether, in fact, the sewing machines are exempt under the territorial law, hut whether the lower court erred in holding that it was without jurisdiction to pass on that question. Appellant’s counsel relies on the case of Lockwood v. Exchange Bank, 190 U. S. 291, as supporting his contention that this action may be maintained. That case is controlling authority to the effect that title to exempt property of a bankrupt under the Bankruptcy Act of 1898 does not pass to the trustee and remains in the bankrupt, but that leaves open the very point here in issue, to wit, the manner in which the bankrupt’s exemptions shall be determined and set apart and what court has jurisdiction of such a proceeding.
The only point raised by the exceptions being that the dower court erred in granting the motion for nonsuit and entering a judgment of nonsuit thereon, the judgment will have to be affirmed if any of the grounds of the motion are well taken;
Exceptions overruled.