2 S.D. 100 | S.D. | 1891
On the 15th day of August, 1887, defendant Balgord, as sheriff of Brookings county, levied upon and afterwards sold one bay mare as the property of plaintiff Chester M. Paddock, upon an execution issued upon a judgment against said Paddock. Defendant Fisher was the judgment creditor, and directed such seizure and sale. The plaintiffs sought to recover the value of the mare, on the grounds that one undivided half of the same was the property of plaintiff Mary C. Paddock, and not liable for Chester M. Paddock’s debts, and that the other undivided half interest, belonging to Chester M. Paddock, was exempt from execution. Defendants denied that Mary C. Paddock owned
The first assignment of error is that the referee erred in finding that Mary C. Paddock was the owner of a one-half interest in the mare in controversy. There was certainly some evidence in support of the referee’s finding as to this fact, both herself and husband testifying to it positively, and explaining fully the source of her title and manner of acquiring it. Against this1 defendants introduced evidence tending to disprove her claim of ownership. The question of fact thus in dispute is determined by the referee in favor of plaintiff Mary C. Haddock, and we cannot disturb it.
The second and third assignments allege error upon the part of the court in holding that Chester M. Paddock’s interest in the mare was exempt, under the statutory provisions for additional exemptions, for the reason that the schedule which he delivered to defendant the day following the levy did not show that it included all his personal property, as provided in Section 5130, Comp, Laws, and that his personal property did not exceed §1,500 in value. We do not think the failure of the schedule to state that it contained all the debtor’s personal
The two remaining assignments are error of the court in rendering and refusing to vacate the judgment, based upon the report of the referee, which it is claimed entirely ignores and fails to find upon one of the vital issues in the case. Plaintiff’s complaint alleged that his interest in the property taken was exempt under the statute providing for additional exemptions, and that he had done all the law required of him to establish such exemptions, towit, gave timely notice to the sheriff that he claimed the same as exempt, and delivered to him a verified schedule of his personal property. To meet this, defendants’ answer averred that the judgment to collect which the property was taken was “a judgment for labor,” against which it was claimed the horse would not be exempt under Section 5136, Comp. Laws. This, being new matter not relating to a counterclaim, would in general be deemed to be controverted, and thus would be raised a very material issue in the case; but we do not think the allegation that the judgment was “a judgment