State ex rel. Scoville v. Wilson

31 Neb. 462 | Neb. | 1891

Maxwell, J.

This is an application for a peremptory writ of mandamus to compel the respondent, the sheriff of Saunders county, to call to his assistance three disinterested freeholders and appraise certain property claimed by the relator as exempt under section 521 of the Code of Civil Procedure. The relator is the wife of E. A. Seoville, who has absconded and his whereabouts are unknown.

In November, 1888, attachments were sued out against the said E. A. Seoville in the district court of Saunders county, and the personal property of the said defendant Seoville was levied upon. The relator then filed in the said district court an inventory under oath of the whole of the personal property owned by herself and her said husband and prayed for $500 exemption in personal property in lieu of a homestead and to release certain property specifically exempt. The officer then refused, and still refuses, to call appraisers and appraise said property and set apart the $500 exemption. The relator, therefore, applies to this court for relief.

In the ease of Frazier v. Syas, 10 Neb., 115, where the husband had absconded but the wife remained on the homestead and, she being the head of the family, claimed the benefit of the exemption, it was held that she was entitled to the exemption. That decision was approved in Hamilton v. Fleming, 26 Neb., 240, where it is said “that to hold that by the departure of the husband the family would be deprived of the right to hold such property would, in effect, destroy the beneficent purpose of the exemption laws.” These decisions, in our view, state the law correctly.

Second — In State v. Krumpus, 13 Neb., 321, and State v. Sanford, 12 Neb., 425, it was held that where property was levied upon under an attachment the party must appeár before the court in that action and. ask that it be released as being exempt.

These cases were overruled in Mann v. Welton, 21 Neb., 541, and in Hamilton v. Fleming, 26 Id., 240. The cases last cited, in our view, state -the law correctly and will be adhered to. In any view of the case, therefore, the relator was entitled to have the property appraised and to select such articles as she is entitled to under the exemption law. A peremptory writ is therefore

Allowed.

The other judges concur.