Schwartz v. Birnbaum

21 Colo. 21 | Colo. | 1895

Mr. Justice Campbell

delivered the opinion of the court.

The questions sought to be raised by this appeal may be stated as follows: First, Was the defendant, under our statute, a person entitled to the exemption of his stock in trade ? Second, Has he made his claim for exemption in the proper time and manner ? Third, Does the claim and evidence justify the judgment rendered by the county court?

That the defendant at the time of the levy of the writ of attachment was the head of a family admits of no doubt. That he was then residing with the same is not true in the literal or ordinary sense of the term. But it is contended by the appellee, as our constitution enjoins upon' the legislature the enactment of liberal exemption laws, and as the courts, when those laws are passed, construe them liberally in favor of persons claiming rights thereunder, and in order to effectuate their beneficent design, that the defendant was residing with his family in Colorado within the meaning and intent of the statute.

It is true that the courts, in the construction of statutes, will endeavor to arrive at the true meaning of the legislature, even though the meaning so ascertained will depart from the literal sense of the words. It is also true that courts will endeavor to give to all the words found in a statute their proper and legitimate meaning, and will presume that the legislature meant something when it employed those words. The principal object of all exemption kws, it has been said, is for the benefit of the family, and, under our law, this benefit is to be enjoyed by the head of a family and for their use only while he resides with the same.

As has been said, the evidence here shows that the defendant is the head of a family; that he came from the state of New York to Colorado to make this his permanent home, and to remove his family here as soon as he was able to accomplish it. When he left New York his family went to the state of Pennsylvania. They have never been in the state of Colorado. Appellee contends that inasmuch as the domicile of the husband is the domicile of the wife, therefore the residence of the husband must be the residence of the wife and family. This is not universally true as a matter of fact, neither do we think it follows as a matter of law. If this contention were correct as a legal proposition, the legislature evidently misinterpreted the then existing law. The legislature evidently construed the law to be that the head of a family might have a residence in one place, and his family a residence in another place, and that the head of a family might have his residence, and still not reside with his family; so it imposed as a condition to the right of exemption that the head of a family should enjoy it only while he is residing with the same. The converse of the proposition must necessarily be true, that when he is not residing with his family, he cannot claim the right of exemption. If the residence of the head of a family fixes tire residence of his family, and if the law establishes the residence of the family wherever the head is residing, then the head of the family resides with the same, even though the family be residing in one state and the head in another state. If such be the law, then the use of the language “ and residing with the same ” is entirely superfluous ; but we cannot presume that the legislature used these words without intending to convey some meaning.

In Illinois, where the statute is like ours in that it requires that a claimant must be the head of a family and residing with the same to entitle him to maintain his claim that such property is exempt from seizure, it is held that the claimant must prove not only that he is the head of a family, but that he resides with the same, showing that these words impose a condition other than that one must be the head of a family. McMasters v. Alsop, 85 Ill. 157; Barnes v. Rogers, 23 Ill. 350.

The claimant must reside with his family either in this state or in the state of Pennsylvania. He is here; his family is there. He does not claim his residence in Pennsylvania, but bases his claim to this exemption solely upon the fact that he is a resident of this state; hence he does not reside with his family in Pennsylvania. In no sense of the term can it be held that he is residing with his family in this state. He could not very well reside with them unless they reside with him, and they reside in Philadelphia. They never have been here, but during his entire residence in Denver they actually were in the state of Pennsylvania. Hence defendant does not reside in Colorado with his family, even if both defendant and his family intended that they should reside here. To produce such a result, the intention and act must unite. If plaintiff’s family had once resided with him in Colorado, and had thereafter gone to Pennsylvania 'for a temporary residence, the case would be quite different, and the pertinency and force of appellee’s argument would be recognized.

As the plaintiff does not come within the class of persons named in this statute as entitled to the benefit of exemption, strictly it may not be necessary to determine whether or not he properly made his selection of exempt property. But no selection was ever made by defendant. Property other than that claimed to be exempt was levied upon. The mere demand by defendant of his right to select was not equivalent to making the selection. It was not the duty of the constable to set apart the exempt property, unless the claimant pointed out such property, when the .seizure embraced other property rightfully taken, and the exempt property was not specifically exempt by the statute, but merely comprised a portion of stock in trade, even though it be less than $200 in value.

There is another reason why the judgment should be reversed. The constable under the writ of attachment seized not only this property which is claimed to be exempt, but also other property purchased by the defendant from the plaintiff, for the purchase price of which this action was brought. The nature of the claim sued upon does not expressly appear from the evidence, but the appellee in his brief virtually concedes that the action was for the purchase price of goods sold to him by the plaintiff, and in his affidavit claiming exemption he expressly excepts therefrom such goods as were purchased by him from the plaintiff. The evidence does not disclose specifically what goods are claimed as exempt, or what was confessedly subject to the attachment. The count}»- court, however, ordered a release of all the property attached, both that which was declared not subject to attachment and that conceded to be liable thereto, and ordered a return of all the property to the defendant. This was error. If the defendant was a person entitled to the exemption, and if there was evidence in the record to inform us what specific property was subject to attachment and. what was not, we might modify the judgment of the court below, and order a redelivery to the plaintiff of that portion of the property so seized under the writ of attachment, which the plaintiff sold to the defendant, and affirm so much of the judgment as awarded a delivery to the defendant of the exempt property. There is no evidence, however, which would enable us so to do.

For the reasons given in this opinion the judgment must be reversed with instructions to the court below to proceed in accordance with the views herein expressed.

Reversed.