7 S.D. 157 | S.D. | 1895
To recover the possession or value of certain exempt property this action in claim and delivery was instituted against the sheriff in the court below, and successfully prosecuted to judgment. The facts estential to a, determination of this appeal which was taken by the defendant from the judgment and an order overruling a motion for a new trial, are, in effect, as follows: Upon the ground that the property in controversy was obtained by means of false and fraudulent representations, a stock of boots and shoes kept by plaintiff for the purpose of retail trade was seized by the defendant on the 11th day of September, 1893, under an attachment issued from the county court in an action then and there pending, wherein Kellogg, Johnson & Co., was plaintiff and Maria C. Linander was defendant. After issue was joined, and at the commencement of the trial, a written stipulation was entered into and filed in open court, whereby plaintiff was allowed to take judgment for the amount claimed in its complaint as due from defendant on account, without trying the allegations set up in the complaint as to the goods being fraudulently obtained; and it was expréssly agreed that neither party should be prejudiced in any manner by a failure to litigate in that suit the allegation that the goods were obtained by defendant from plaintiff under false pretenses and representations, and that a judgment should not be entered for goods, wares, and merchandise thus obtained. Prior to the entry of judgment upon the foregoing stipulation, and within the statutory time, the defendant, claiming to be the head of a family, made and served upon the attaching officer a written demand in the usual form for the exemptions allowed by law, and in accordance with the statute designating an appraiser therein; and the contention of counsel for appellant that plaintiff cannot recover in this action against the sheriff, as no further proceedings were had upon her claim for exemptions, and because the property
Whether plaintiff, a married woman, is, in contemplation of law and the facts before us, the head of a family, and as such entitled to claim the exemptions allowed by law, is the only remaining question that demands attention, and a determination thereof requires an examination of the statute, as well as the evidence pertaining to the relation of plaintiff to her husband and the children of which the family is composed. Section 5128 of the