11 Colo. App. 503 | Colo. Ct. App. | 1898
delivered the opinion of the court.
The plaintiffs were husband and wife, and occupied certain rooms of the defendants as their tenants. The plaintiffs
By an act of the legislature, approved March 26, 1889, it is provided that the keeper of any hotel, tavern or boarding house, or any person who rents furnished or unfurnished rooms, shall have a lien upon the baggage and furniture of his or her patrons, boarders, guests or tenants, for such boarding, lodging or rent, and for all costs incurred in enforcing such lien. Session Laws, 1889, p. 232. The lien so created is enforced by a sale of the property, made by the person having the lien, after an appraisement in the manner prescribed by law, and a notice of the time and place of sale, given as the statute requires. Gen. Stats, secs. 2121, 2122, 2123. Certain enumerated articles of personal property, when owned by any person, being the head of a family, are exempt from levy and sale, upon any execution, writ of attachment, or distress for rent. Gen. Stats, sec. 1866. The common-law process of distress for rent does not now exist hr this state, so that it is only from levy and sale upon execution or writ of attachment that exemption can be claimed. Accordingly every affidavit for replevin must state that the property was not seized under an execution or attachment against the property of the plaintiffs; or, if so seized, that it is exempt from such seizure. Gen. Stats, sec. 2023. Therefore unless property has been seized under execution or attachment, replevin for it does not lie on the ground that it is exempt from seizure.
The property in controversy had not been seized by virtue
The affidavit for replevin is not in the record. We therefore do not lmow what it contained. If it stated that the property had been seized under an execution or writ of attachment, it was not true; and if it did not state that it had been so seized, it was not good. And, not having the affidavit before us, we are unable to understand why the husband and wife were joined as plaintiffs. It is stipulated that the husband was the head of the family. Such being the case, it was only in his favor, and as to property owned by him, that an exemption could be allowed. If the property was owned by some other member of the-family, it would not be exempt; and from the fact that the husband and wife were made joint plaintiffs, it is inferable that the affidavit contained some statement concerning the ownership of the property inconsistent with a right of exemption in the husband. Upon the record as it has been presented to us, we must affirm the judgment.
Affirmed.