4 Colo. App. 126 | Colo. Ct. App. | 1893
delivered the opinion of the court.
This judgment was evidently entered on a misconception of the privilege and the duty of the exemption claimant, of the authority and responsibilities of the officer under the writ, and of the proper construction of the exemption statute. There
These authorities do not state when the right of selection shall be exercised, nor when the claim shall be made; but since under some circumstances the claimant must make his selection,-the rule adopted in those cases which impose the duty on the claimant is the only one which can be followed. In general, those authorities state that the selection may be made, and the notice concerning it may be given at any time prior to sale under the process by which it was taken. Of course the rule would be the same in attachment as after judgment — although in the former the right to exercise the privilege would probably continue until the final entry, and an attempt to sell under the execution. Thompson on Homesteads and Exemptions, § 839; Freeman on Executions, §§ 211 et seq.
In this case it is fairly deducible from the record that the
Although this is true, no injury seems to have come to Holdrege by reason of the officer’s conduct, nor did any cause of action come to him by reason of it. He refused to take the horse when Metcalf returned it, and although it was probably, in the contemplation of the law, in his possession when it entered the yard, and the officer transcended his rights when he retook it into his possession, the legal status of the parties was settled by their subsequent proceedings. After Madera took the horse away, Holdrege served a written demand on him for its return, claiming his statutory privilege. The case shows that after this demand, though at what precise date cannot be determined, Madera took the horse back to
The phraseology of the act undoubtedly is that, “ if any officer, etc., shall take or seize, etc., any of the articles, etc.” On the argument it was seriously insisted by counsel that the right of action for treble damages under the act accrues immediately upon the taking or seizure of property, and if it is not returned under the exemptioner’s demand before suit brought, the status of the parties is thereby settled and concluded. It was contended that they occupied precisely the same situation they would in the case of a seizure of the property of one by another, and a refusal to surrender on demand, which is always proof of conversion in the action of trover. But we think there must be in a case of this description something which is equivalent to a conversion of property by the officer to entitle the defendant to the enforcement of this penalty. To take and seize must be held to include in its legal significance the elements of conversion. No other construction would prevent the most manifest injustice. If the right of action for treble damages accrues immediately upon the seizure of exempt property under process, the defendant could recover from the officer at once three times its value, replevin what had been taken, pay his debt, have money and the goods left, and be likened unto the disciples on the banks of the Sea of Galilee, when they gathered up more than twelve basketsful of fragments beyond the amount of the original feast. If it be the law that the duty of selection must under some circumstances be discharged by the claimant, and
The appellants attack the complaint because of the failure of the pleader to insert an allegation that the action was brought to recover the penalty specified in the statute. A good deal of stress was laid on the discussion of this proposition, and counsel seem to consider the pleading so fatally defective as to be subject to the criticism that it did not state facts sufficient to constitute a cause of action. It is not vulnerable to this objection. The pleader aptly and sufficiently stated all the facts constituting his cause of action — his title, his right under the statute, the levy of the process, his demand, the refusal to surrender, and all other facts essential to show his right to the possession of the property and the recovery of three times its value, and for this he prayed. These allegations were certainly a sufficient statement of a cause of action. Had they been adequately supported by the testimony, this would have enabled the plaintiff to succeed. His failure to prove a refusal to return the horse after demand, should the same result be reached ou a subsequent trial, would doubtless defeat his recovery, and the absence of both averment and proof of conversion would then become of first importance if the court should" be called on to pass on the matter of costs.
In the statement of facts preceding the opinion, we have recited a meager history of the mortgage under which a third party took the property from the custody of Madera after Holdrege’s refusal to receive it, and under which it was subsequently sold and applied to the satisfaction of the mortgage debt. Under some circumstances, this proceeding might possibly operate as a defense to the officer when he was sued under the statute for the illegal taking. The matter is not
The judgment is erroneous, and because of the errors committed by the trial court it must be reversed, and the case remanded for a new trial in conformity with this opinion.
Reversed.