54 N.W. 286 | N.D. | 1893
This controversy arises under the exemption laws of this state. The defendant, and appellant herein, was sheriff of Walsh County, ‘and as such received a writ of attachment in an action brought by the firm of Dodson, Fisher & Brockman against John P. Wager,, the plaintiff and respondent herein. The sheriff at once laid the writ upon a stock of merchandise consisting of harness, harness leather, harness hardware, blankets, robes, etc., belonging to the respondent. Respondent made an effort to claim his exemptions under the statute, but his claim was not recognized by the office;-, whereupon he brought this action in claim and delivery, resulting in a verdict and judgment in his. favor.
Our statute (§ 5x28, Comp. Laws) gives the debtor, in addition to certain absolute exemptions, other personal property, not to exceed in the aggregate $1,500 in value. Section 5130 provides that, when the debtor desires to avail himself of the additional exemptions, he must make and deliver to the officer who has levied process upon his property a verified schedule of all his personal property, and provides that any property owned by the debtor, and not included in the schedule, shall not be exempt. Other provisions provide for an appraisement, and that from the appraisement so made, if over the limitation in value, the debtor may select the amount of his additional exemptions. The claim for the benefit of these exemptions must be made within three days after the notice of the levy. Within the time limited, the respondent (defendant in the attachment action) served upon the officer the following notice, (omitting title:) “To the sheriff of said County of Walsh: Take notice that the above named defendant hereby claims the following personal property owned by him as exempt from attachment and execution in the above entitled action, that is to say, viz: the personal property, book accounts, and notes mentioned in the schedule hereunto annexed, and made a part of this notice; and you are further notified that I choose M. F. O’Brien, a disinterested citizen of said county, not related to either party, to act as my appraiser in fixing the
The appellant requested certain instructions, involving the following points: First, that the schedule was insufficient for the reason that it did not cover all of respondent’s property; second, the demand for exemptions was insufficient in that it did not appear that the articles demanded were selected from the appraisement; third, that there was no evidence of the value of the property; and, fourth, that the property purchased from Dodson, Fisher & Brockman, and for the purchase price of which the attachment action was brought, was so intermingled and combined with the property claimed as exempt that they could not be identified and separated. These requests were all refused, and the court, in its charge to the jury, said: “I say, as a'matter of law, that all the proceedings of the plaintiff leading up to his demand for exemptions in this case were had within the time and in the manner prescribed by law.” On argument, in addition to the points made in his requests, appellant urges that the instruction quoted was error, because it appears by the evidence that the property demanded covered the entire appraisement, which exceeded the exemption limitation in value; or, if this be not true, that there was no evidence in the case showing the appraised value of the property claimed. It is far from clear upon the record that these last points were ever called to the attention of
We call attention, first, to the fact that the schedule served did not cover all of respondent’s property, but only such as he claimed as exempt. The statute requires the debtor to serve a schedule covering all his personal property, but it does not say that his failure to include all such property shall deprive him of his exemptions. It fixes the consequence of such omission-when it declares that any property not so included shall not be exempt. Courts cannot declare a more serious consequence. Respondent seems to have understood and intended that all of his personal property not embraced in the schedule should be applied on his debt; and, while it is true that his schedule was not a literal compliance with the statute, yet, under the liberal construction always applied in the matter of exemptions, we think it sufficient in this case. Paddock v. Balgord, (S. D.) 48 N. W. Rep. 840. The officer had already seized, and had in his possession, all of respondent’s personal property. Had the schedule misled the officer as to the amount of respondent’s property, and particularly if it had been made with intent to mislead him, an entirely different question would be presented. The demand for exemptions contained in the schedule was a nullity, because at that time there had been no appraisement, and the law requires the selection to be made from the appraisement where it exceeds $1,500 in value. Section 5132, Comp. Laws. But it is undisputed, under the testimony, that the list of property contained in that schedule was taken from the inventory which the sheriff (appellant) had served upon the defendant in the attachment case, (respondent herein.) The appraisement, of course, covered the same property that was in the inventory, and all of it. It might have covered more, but that is immaterial now. Another demand for the same property was made after the appraisement. As we have just said, this property must have been upon the appraisement, and the demand was a sufficient selection from such appraisement. In this connection
The action of Dodson, Fisher & Brockman, was on account for goods sold and delivered. Section 5137, Comp, laws, provides that no property shall be exempt from siezure on execution issued for the purchase price thereof. The trial court charged that the burden was upon appellant to show what property, if any, that was claimed by respondent as exempt, had been purchased from Dodson, Fisher & Brockman, and the purchase price of which was included in the account sued upon. In this there was no error. When respondent established that he was the owner of the property, and that its value did not exceed $1,500, .and that he had made a proper demand therefore, he showed a prima facie case of exemption. If it was.not exempt, it was by reason of some exception to the general law, and the party who claims the benefit of such an exception must bring, himself .within its terms. Paddock v. Balgord, supra.
It appears that respondent had been in the habit of purchasing goods from different parties, and, when received, he placed them upon his shelves indiscriminately; so that, when the same character and quality of goods were purchased from different parties, and placed upon the shelves, it became impossible to say what articles were purchased from one party, and what from another. As the goods purchased from Dodson, Fisher & Brockman, were liable to seizure in an action for the'purchase price thereof, and as such goods could not certainly be identified by reason of the mixture madejby respondent, it is claimed that thereby the whole stock became liable to seizure. We cannot assent to this proposition.
Lastly, the old common law rule is invoked that, the goods being in custodia legis, replevin would not lie. The rule is not of universal application in this state. Section 4973, Comp. Laws, prescribes what the affidavit in claim and delivery of personal property shall state, and, among other thifigs, it must state that the property was not “seized1 under an execution or attachment against the property of the plaintiff, or, if so seized, that it is by statute exempt from such seizure.” Clearly this statute authorizes the action whex-e the property is claimed as exempt, as in this case. Cooley v. Davis, 34 Ia. 128; Whitney v. Swensen, (Minn.) 45 N. W. Rep. 609.
Judgment affirmed.