Minor v. Edwards

6 Indian Terr. 438 | Ct. App. Ind. Terr. | 1906

Townsend, J.

(after stating the facts). The appellant has filed two specifications of error, as follows: “(1) The court erred in instructing the jury to find for the plaintiff Edwards. (2) The verdict was not sustained by sufficient evidence and was contrary to law.” The statute of Arkansas (Mansf. Dig. ([Ind. Ter. Ann. St. 1899, § 2121]) in regard to exemptions provides as follows: “Sec. 3006?. Whenever any .resident of this state shall, upon the issue against him for collection of any debt by contract of a-ny execution or other process, of any attachment except specific attachment, against his property, desire to claim any of the exemptions provided for in article 9 of the Constitution of this state, he shall prepare a schedule, verified by affidavit, of all his property, including moneys, rights, / credits and choses in action held bjr himself or others for him, and specifying the particular property which he claims as exempt under the provisions of said article, and after giving five days' notice, in writing, to the opposite party, his agent, or attorne}';, shall file the same with the justice or clerk issuing such execution or other process or attachment; and the said justice or clerk shall thereupon issue a supersedeas staying any sale or further proceeding under such execution or process, or attachment, against the property in such schedule described and claimed as exempted, and by returning the property to the defendant. Provided, that an appeal may be taken to the Circuit Court from any order or judgment •rendered by the justice of the peace upon the filing of the affidavit and executing the bond required in other cases of appeal.” It is not contended 'that this statute was not fully complied with. The schedule was filed, and supersedeas issued as the statute required, yet appellant contends that it was the duty of the appellee to have the supersedeas served upon the constable. It is sufficient to say that the contention of appellant is not a requirement of the statute, and for this court to sustain appellant’s contention is to engraft upon the statute a requirement not made by the statute itself. Appellant cites in support of his contention Healy vs Connor, 40 Ark. 352,^but that case only holds that it is the duty of the person claiming exemption to see that the supersedeas is issued. It is a requirement of the statute that the supersedeas should issue, and the court very properly held that the party claiming its benefit should see that the statute was complied with. The appellee gave notice of his application for exemption, as the statute required, and the attorney for the execution Creditor was present and resisted it, and after the supersedeas was -issued the same was delivered to the said attorney, who forwarded the* same to the constable making the levy, by mail but the constable, being absent, did not receive it. It is therefore conclusive that appellee complied fully with the statute, and the attorney of the creditor who placed the execution in the hands of the constable making the levy was cognizant of that fact. The appellee had taken every step that the law required to secure his exempt property from sale. Thompson on Homesteads and Exemptions, § 877, says: “A sale of property exempt by law from executions has no effect whatever to divest the owner of his title and vest title in the purchaser, and the owner may maintain an action against the purchaser for the conversion of such property. The levy on such property has no more effect to change title than a levy on the property of a third person would have."

We are of the opinion that appellant obtained ho title by his purchase, and the court below committed no error in directing a verdict for appellee, and the judgment is therefore affirmed.

Gill, C. J., and Lawrence, J., concur.