Thibault v. Lennon, 64 P. 449

Thibault v. Lennon

64 P. 449 | Or. | 1901

Mr. Justice Wolverton,

after stating the case as above, delivered the opinion of the court.

1. The statute requires that the transcript on appeal shall contain, among other things, a copy of the notice of appeal: Hill’s Ann. Laws, § 541. Undoubtedly, the omission left the transcript incomplete. By section 542, when it appears by affidavit to the satisfaction of the court that the transcript is incomplete in any particular substantially affecting the judgment or decree appealed *282from, the court shall, upon motion of the respondent, make a rule upon the clerk of the court below to certify up the omitted order, entry, or paper. But the respondent may, if he desires, file a motion to dismiss the appeal, which the court must allow, unless on the cross motion of the appellant it make a rule directing the clerk to supply the omission. * This affords ample authority by which to require the completion of an imperfect transcript. There was apparently a genuine effort to perfect the appeal in accordance with the statute, but by reason of the loss of the notice it could not be included in the record until it was supplied, and this without the fault of the appellant. There was a transcript filed, which was incomplete because it did not include the particular paper designated. Now, the appellate court is given power to require the proper officer to supply the omission and complete the transcript, so that the jurisdiction of the court was in no way affected by the absence of a copy of the notice from the record. It can hardly be said that the omission of this paper substantially affected the merits of the judgment appealed from; yet, as the law requires it to be in the record, the appellant was entitled to have it brought up, and when that was done it was all that the respondent could ask. The court having acquired jurisdiction, a dismissal was properly denied..

2. Household goods, furniture, and utensils of the value of $300, if owned by a householder, and in actual use or kept for use by and for his family, are exempt from execution if selected and reserved by the judgment debtor at the time of the levy, or as soon thereafter and *283before the sale as the same shall be known to him : Hill’s Ann. Laws, § 282. Property of the nature indicated is not exempt except upon condition. The debtor must become an actor, and, in order to secure the benefit of the statute, must by timely interposition select and reserve such as he claims to be exempt when the officer seeks to take it in satisfaction of his writ. However, when he has done this, in the absence of fraud or any attempt to cover up other property of a like nature, or to secrete and so dispose of it as to elude the efforts of the officer, he has done a-11 that is necessary for him to do in order to secure the benefits accorded. The policy of the law is to extend the privilege of selecting such property as he may desire, not exceeding $300 in value. This he may do, although he possesses much more of the same kind, and the officer must look to such as he does not claim. It was said in Smith v. Slade, 57 Barb. 637, 640 : “ It is quite immaterial whether or not the plaintiff has not other articles besides those levied on, also exempted by statute, which, with those claimed in the action, exceed $250. The statute limits the exemption by enumerating the articles which, within the value of $250, are exempt; and, if the articles so enumerated exceed that limit of $250, the debtor may elect which description of property he will have exempted, if this election is made within a reasonable time.” And again, in State v. Finn, 8 Mo. App. 261, 264: “The question whether plaintiff’s relator had other property or not is immaterial. * * * If the sheriff says the debtor claiming exemption has other property not exempt, it is for him to find it and seize it. The execution debtor, no matter what other property he may have, has a right to select and claim particular property up to that limit fixed by the law.” “By the weight of the authority,” say the learned authors in 12 Am. & Eng. Ency. Law (2 ed.), *284161, “ both under statutes exempting specific articles and under statutes exempting property generally not exceeding a certain sum in value, the debtor’s right to select and hold particular property as exempt is not in any way affected by the fact that he owns other property which is subject to execution, and which he has not’surrendered to the officer.” In further support of this view of the law, see Bray v. Laird, 44 Ala. 295 ; Baldwin v. Talbot, 43 Mich. 11 (4 N. W. 547) ; Anderson v. Ege, 44 Minn. 216 (46 N. W. 362) ; Wilcox v. Hawley, 31 N. Y. 648; Elder v. Williams, 16 Nev. 416; Ross v. Hannah, 18 Ala. 125; Williamson v. Harris, 57 Ala. 40 (29 Am. Rep. 707).

There are some states — notably Illinois — wherein it is held that the debtor is required, if he has more property than he is entitled to hold as exempt, to surrender or point it out to the officer before he is entitled to the release of that which he has selected and demanded ; but our statute requires no such condition precedent at his hands. When, however, his right to the exemption is questioned, he must be able to show the necessary facts to entitle him to the privilege, namely, that he is a householder; that the property claimed consists of household goods, furniture, and utensils, which are in actual use or kept for use by and for his family ; that he is the owner ; and that its value does not exceed $300. When he has affirmatively proven these facts, he has established his claim (Stewart v. McClung, 12 Or. 431, 53 Am. Rep. 374, 8 Pac. 447), and he is not required to go further in order to prevail against the officer whom he has been compelled to sue in a court of justice to recover the possession of the property seized. It follows, therefore, that plaintiff was not required to show that she had not other property of the kind, or that she was not withholding any such, before she was entitled to that which was attached, and she *285should have been permitted to go to the jury upon the case made. The trial court was therefore in error in granting the nonsuit, for which the judgment will be reversed, and the cause remanded for a new trial.

Reversed.