180 Ky. 315 | Ky. Ct. App. | 1918
Opinion op the Court by
Denying appeal.
On the 29th day of December, 1916, the appellees, Frank Carrithers and brothers, filed this action against the appellant, C. W. Roberts, in which was sought a personal judgment against appellant upon a promissory note, which he had executed to the appellees, in 1912, and a general order of attachment against his property, which was subject to execution, and the subjection of such property to the payment of the debt. The averments necessary to obtain the attachment were made and it being issued, was levied by the officer upon the one-half of a crop of tobacco owned by appellant. The crop of tobacco was grown in the year, 1916, by appellant, as a tenant, upon the farm of one Neel and was jointly owned by Neel and appellant. The grounds of the attachment were, that the demand sued upon was flue upon a contract and that appellant did not have sufficient property, subject to. execution, in the state, to pay the debt, and its collection would be endangered by the delay arising from waiting to obtain a judgment and a return of nulla bona, and the further ground that.appellant was about to sell his property with the intent to
A general demurrer was sustained to the answer and appellant declining to plead further, a personal judgment Avas rendered against him upon the note, and a, further, judgment, by Avhich the attachment was sustained and the property subjected to sale for the satisfaction of the debt sued upon. From the- judgment ordering the attachment to be sustained and a sale of the property in satisfaction of the debt an appeal is sought and a reversal of the judgment prayed for.
The question for determination is, whether the tobacco crop OAvned by appellant, under the circumstances stated in the answer, is subject to levy and coercive sale for the satisfaction of his debts, or is it exempt
Section 1697, Kentucky Statutes, now controls and determines what personal property of a debtor is exempt from coercive sale for the payment of his debts, as modified by sections 1698, 1699 and 1700 of Kentucky Statutes.
Section 1697, supra, is as follows:
“The following property of persons with a family resident in this Commonwealth, shall be exempt from execution, attachment, distress, or fee-bill, namely: Two work beasts, or one work beast and one yoke of oxen; two plows and gear; one wagon and set of gear, or cart or dray; two axes, three hoes, one spade, one shovel; two cows and calves; beds; bedding and furniture sufficient for family use; one loom and spinning wheel and pair of.cards; all the spun yarn and manufactured cloth manufactured by the family necessary for family use; carpeting for all family rooms in use; one table; all books not to exceed seventy-five dollars in value; two saddles and their appendages; two bridles; six chairs, or so many as shall not exceed ten dollars in value; one cradle; all the poultry on hand; ten head of sheep, not to exceed twenty-five dollars in value; all wearing apparel ; sufficient provisions, including breadstuff and animal food to sustain the family for one year; provender suitable for live stock, if there .be any such stock, not to exceed seventy dollars in value; and if such provender be not on hand, such other property as shall not exceed such sum in value; all washing apparatus, not to exceed seventy-five dollars in value; one sewing machine, and all family portraits and pictures; one cooking stove and appendages, and other cooking utensils not to exceed in value twenty-five dollars; ninety per centum of the salary, wages or income earned by labor, of every person earning a salary, wages, or income of seventy-five dollars or less per month, provided that the lien created by service of garnishment, execution or attachment, shall not affect ten per centum of such salary, wages, or income, earned at the time of service of process; of the salary, wages, or income earned by labor,
This statute has for a groundwork a statute similar in substance, with changes made by amendments from time to time, but which has been in force since the period of the Revised Statutes, but, in its present form, it has existed only since the amendment of 1910, found in Session Acts, 1910, page 341, and its re-enactment in accordance with the amendment. According to its terms, a debtor is not entitled to hold, as exempt from seizure and sale for the payment of his debts, any articles of personal property not designated, as exempted by the statute, except, in the instance, where he has live stock, which are exempt, and he has not provender suitable for the sustenance of such stock, in Yhich instance, he may hold as exempt, in lieu of provender not on hand, other personal property, not in excess of seventy dollars in value, necessary to sustain them. In the instant case, however, suitable provender for the debtor’s live stock seems to have been on hand, at the time of the levy of the attachment, and exemption is not claimed of any of the tobacco seized upon that ground. It will be observed, that the statute, does not mention tobacco as being one of the articles of personal property, which is exempt from seizure and sale for the benefit of the creditors of the owner. It has been held that when a specific article of personal property is made exempt from seizure and sale for a debt of the owner, the courts are not authorized to extend the exemption, -by construction, to any other or different article. Carty v. Drew, 46 Vt. 346. It is, also, a rule, that the right of a debtor to an exemption of his property from seizure and sale for the payment of his debts is determined by the statute, which creates the exemption and only the specific articles mentioned as exempt are held to be exempted, as in the absence of such statutes all property is subject to execution. 18 Cyc. 1374; Peak v. Weller, 10 R. 153; Herndon v. Waters, 14 R. 667; Hayden v. Crutchfield, 3 R. 83. It is true, that in the construction
The appellant not being of either of the classes provided for by sections 1699, 1700, nor 1702, Kentucky
“Salary, wages or income” are joined in the same connection, they are to be earned in the same way “by labor,” and the same percentage of each of them is made exempt, and the portion of each not exempt is ten per centum of the sum “earned at the time of service of process.” The salary exempted is ninety per centum of the amount earned per month, provided the salary is seventy-five dollars or less per month. The same ratio of exemption applies to wages, and the same exemption applies to income. The exemption of salary, wages and income is ten per centum of each of them, computed up to the same time, which is at the time of service of process. A salary is the consideration paid or agreed to be paid to a person at regular, fixed periods, in consideration for his services, and wages has a similar meaning, except that salary is ordinarily used when speaking of the employments of a more dignified character. Both salary and wages are terms invariably used in defining the consideration, which an employer bestows upon one, who is serving him, in consideration for his services and is usually a consideration in money,