9 S.D. 168 | S.D. | 1896
This proceeding is to compel defendant as sheriff, to comply with plaintiff’s claim for exemptions out of her husband’s property in his possession, under a writ of attachment against her husband. Defendant’s demurrer to the alternative writ, on the ground that it does not state facts sufficient to warrant the relief demanded, having been overruled, and a peremptory writ awarded, he appeals.
It is alleged in the alternative writ that defendant is sheriff; that plaintiff is, and has been for years, the wife of William Meyer; that Meyer is, and has been for years past, the head of a family, consisting of himself, his wife and one child, all of whom have been, for years last past, residents of Meade county in this state, and engaged in the business of farming therein; that October 13, 1893, a warrant of attachment from the circuit court was levied upon certain personal property, describing it; that the property so levied upon is, and was at the time of said levy, all of the property of Meyer, including all the provisions provided for himself and family, and which are and were necessary for one year’s supply for them; that Meyer neglected and failed to claim the exemptions allowed by law from the property so levied upon; that thereupon, and within a reasonable time thereafter, the plaintiff, desiring to avail herself of the benefits of the law in that regard, made claim to such exemptions, alleging the steps required by law in making such claim; that the claim was made November 25, 1893; that it was not sooner made because of proceedings theretofore pending, relative to such levy, which led her to believe that there would be no necessity for making such claim; that immediately upon said levy, on October 18th, at the instance of her husband, proceedings were begun, which resulted in an order dissolving the attachment on October 27th; that the plaintiff, in the attach
This court decided in Noyes v. Belding,. 5 S. D. 603, 59 N. W. 1069, that, where a husband fails to make a demand for exemptions within three days after receiving notice of levy, his wife is entitled to a resonable time thereafter in which to make the claim. In the case at bar it is alleged the plaintiff made her claim within a reasonsonable time. The allegation is admitted by the demurrer; and as there are no allegations upon which the court could have concluded, as matter of law, that the demand was unreasonably delayed, the alternative writ was not 'defective in this respect.
Appellant contends that the wife’s right to claim exemptions upon her husband’s failure to do so does not apply to property absolutely exempt, and that the sheriff cannot be compelled to^set off to her property belonging to-her husband.. The statute is as follows: “If, in any case the debtor neglect, or refuse, or for any cause fail to claim the whole or any of the aforesaid exemptions, his wife is entitled to make such a claim or demand, and to select and choose the property, to select and designate one of the appraisers, and to do all other acts necessary in the premises, the same and with like effect as the debtor himself might do; and if she neglect, refuse, or for -any cause fail so to do, in whole or in part, then one of their children, of sixteen years of age and upwards, being a member of the family, may do so in like manner and with like effect.’’ Comp. Laws, § 5133. As the absolute exemptions are defined in the
Counsel suggest that plaintiff should have alleged that the attachment was not issued for laborers’ or mechanics’ wages, or for a physician’s bill. If she was entitled to any relief whatever, the demurrer was properly overruled. It is conceded that part of the property was absolutely exempt. As to that part, plaintiff was clearly entitled to a mandate of the court requiring its restoration. It is therefore unnecessary to decide whether'plaintiff,should have negatived these exceptions. The order appealed from is affirmed.