2 N.D. 433 | N.D. | 1892
Lead Opinion
The opinion of the court was delivered by
Appellant was sheriff of Dickey county, and as such held an execution issued on a judgment against respondent, under which he made a levy on certain of respondent’s personal property. This case arises under the exemption law. Our statute permits a debtor, in addition to certain absolute exemptions, to select and hold other personal property, not to exceed in value the sum of $1,500. But in order to avail himself of the additional exemptions the debtor must, within three days after the levy, deliver to the officer holding the writ a verified schedule of all his personal property. Provision is made for the appraisement of the property thus scheduled; and, if the appraised value exceeds the sum of $1,500, it then becomes the duty of the debtor to select from the appraisement such property as he claims to hold as exempt, not exceeding in value the statutory limit. Comp. Laws, §§ 5128, 5130-5132. The respondent delivered the verified schedule to the sheriff, and the property was appraised, and the appraised value exceeded the sum of $1,500. Appellant claims that respondent failed to select his exemptions. Respondent, on the other hand, claims that he made such selection, and that as the sheriff failed to release the property selected from the levy, but was proceeding to sell the same, he brought this action in claim and delivery to recover the property selected. The sheriff gave a delivery bond, and ultimately sold the property. Both the sworn schedule and the appraisement list are in evidence. In
But in this connection, and in some manner not disclosed by the record, the jury was permitted to make a serious error. Turning to the verdict, we find among the property, the value of which made up the verdict, the following: “One note and mortgage from Thomas Larkin to plaintiff for six hundred and fifty dollars.” Neither the schedule nor the appraisement contains any mention of any note; but this arises from-an inac-. curate use of terms, as both lists speak of a mortgage for $650 from Thomas Larkin to plaintiff, but describes the same as “assigned to B. E. Gannon as collateral security.” The material thing is the note. If that is not contained in the sworn schedule, then, under the statute, it cannot be claimed as exempt. If, on the other hand, it be claimed that the note is sufficiently described by the description of the mortgage that secures it, then most certainly it is excluded from the list of “ free property,” and was not, under the instructions of the trial court, legally selected by respondent as one of his exemptions. In either event, its value cannot be recovered in this case. The only testimony as to the value of the note is that of respondent himself, who swears that it was “good;” and, as its face value was $650, we are bound to presume that the jury placed it at that sum in making up their verdict. This point as to excessive valuation of property claimed as exempt is fairly raised under
Prom these views, it follows that the trial court must be directed to modify the judgment for the value of the property by deducting therefrom the value of the note, to-wit, the sum of $650; and as thus modified the judgment of the district court will be affirmed. Appellant will recover costs in this court. All concur.
Rehearing
ON REHEARING,
A rehearing was granted in this case upon appellant’s application, and the question as to what is the