5 Kan. 447 | Kan. | 1870
By the Court,
This was an attachment proceeding, originally commenced before a justice of the peace, within and for the county of Johnson. After the issue of the attachment order, and the seizure of certain property thereunder, the defendant in said proceeding, now plaintiff in error, attempted to procure a release of the property attached under and by virtue of the provisions of section fifty-three, chapter eighty-one, General Statutes.
But the justice refused to discharge the attachment or any of the property which had been taken by virtue thereof. To this decision "the defendant excepted, and
The bill of exceptions allowed and signed by the justice, sets out all of the evidence which was offered by the parties on the hearing of the motion to discharge, including a copy of the affidavit upon which the attachment was issued, and also a copy of the affidavit of the defendant, denying the truth of the grounds laid for said attachment. We have examined these affidavits in connection with the testimony which was already submitted, as bearing upon the question of the truth of the facts charged in the one first mentioned, and have come to the conclusion that while such evidence appears somewhat conflicting and otherwise unsatisfactory, as going to establish such facts, still it was evidence, and such as it was proper for the justice to consider in making up his decision. It tended also to sustain every material issue necessarily involved in the judgment which he saw fit to render. Such being the fact, we are not called upon to look further into the testimony, or to review the decision of the court below upon the question of the credibility of the witnesses and the weight which ought to have been given to their statements. Nor is it necessary for us in affirming the decision of the justice, as we feel bound to
Our examination of this case has thus far been confined to the naked question, as to whether this court would interfere with the decision of the justice overruling- the motion to discharge the attachment, on the ground that the allegations made in the affidavit, as furnishing a foundation therefor, were not true. But there is still another question which demands our notice. The record shows that the defendant moved the court to discharge from the attachment a portion of the property seized, on the ground that it was exempt by law from such seizure. The motion contained a description of the property so claimed to be exempt, and the evidence, which is preserved by the- bill of exceptions, shows that it was of the kind mentioned and classed as exempt in the statutes relating to exemptions.
It seems to us that this motion ought to have been granted. The defendant, as the testimony shows, was a resident of the State of Kansas, and the head of a family at the time of the seizure of his property, and as such he was entitled to the benefit of the exemption laws, notwithstanding and 'independent of the fact that at some future time he might have intended to become a non-resident. Such intention might never have been carried into effect; and until it was, he was, and would be, fully within the protection of the laws referred to. It is provided in the exemption act, that no exempted property shall be liable to seizure and sale upon any attachment, execution, or other process, issued from any court in this state; and it scarcely needs to be stated that it is incumbent on the courts of the state to give
If, then, any such exempted property was taken on the attachment in this case, it was the duty of the justice to have ordered the release of the same so soon as the fact was brought to his .knowledge and lawful demand thereof made by the owner. This, we think, was accomplished by the motion of the defendant and the evidence which had been submitted.
The cause is therefore remanded to the district court, with instructions to proceed with the case in accordance with this opinion. And it is further ordered, that the costs of the proceedings in this court be equally divided •between the parties.
