| Colo. | Sep 15, 1892
Lead Opinion
delivered the opinion of the court.
No matter what opinion individuals may entertain regarding the expediency or morality of the liquor traffic, so long as the government recognizes the sale of intoxicating liquors as lawful, any one regularly carrying on business as a saloon keeper is entitled to have his property in such liquors protected the same as other property; he is a liquor merchant, and his liquors are his “ stock in trade.”
The latter part of the foregoing rule applies to the following averments of the complaint in this case: (1) That plaintiff was a licensed saloon keeper, (2) that he was the head of a family with whom he resided in this state, (3) that he was the owner of the property which he claimed as exempt, and (4) that he was doing business under the name and style of George E. Miller. There was no evidence that any deception or fraud was intended by plaintiff in carrying on his business under such name.
The proposition that plaintiff was not entitled to exemption for stock in trade to the full statutory amount, because he was possessed of a license having a monetary value, is untenable. The case of Yates v. Gransbury, 9 Colo. 323" court="Colo." date_filed="1886-10-15" href="https://app.midpage.ai/document/yates-v-gransbury-6561394?utm_source=webapp" opinion_id="6561394">9 Colo. 323, does not support such a view of the law.
It will be observed that the judgment under which the levy was made in the Behymer case was obtained for the purchase price of the specific property levied on, and that
When a vendor sues and recovers judgment for the purchase price of property which he has theretofore sold, the statute gives him the right to have execution against the property so sold while the same remains in the hands of his vendee, notwithstanding such property may be exempt from levy and sale for any other purpose. The proviso in the exemption statute is for the protection of the vendor who has parted with his property without getting his pay for it; it is a privilege personal to the vendor. If the vendor takes a promissory note for the property sold, and transfers the note to a third party, such voluntary transfer of the note does not carry with it to the assignee the right to resort to exempt property to satisfy a judgment which he as assignee may recover upon the note. Whether the heir or personal representative of a deceased vendor would succeed to the privilege of his decedent under the proviso of the exemption statute is not involved in this controversy. The privilege which the statute secures to the vendor would seem to bear a close analogy to the vendor’s lien for the purchase price of real estate. Shepard v. Cross, 33 Mich. 96" court="Mich." date_filed="1875-11-02" href="https://app.midpage.ai/document/shepard-v-cross-7928156?utm_source=webapp" opinion_id="7928156">33 Mich. 96; Baum v. Grigsby, 21 Cala. 173; Welborn v. Williams, 9 Ga. 86" court="Ga." date_filed="1850-08-15" href="https://app.midpage.ai/document/wellborn-v-williams-5551493?utm_source=webapp" opinion_id="5551493">9 Ga. 86.
Affirmed.
Rehearing
On Petition eor Rehearing.
It appears that the goods of Nevitt were first attached by virtue of the writ from the justice’s court on March 15, 1888. On the next day, March 16, Weil and Stevenson were notified in writing that the goods were claimed as exempt and their release was then demanded. Judgment was rendered and special execution issued from the justice’s court for the sale of the attached property on March 21, 1888; and again, on that same day, Nevitt by another written notice claimed and demanded the release of the property.
On the trial of this action Nevitt was asked if he was the head of a family residing in this state at the time of the service of the notice demanding the release of the property. He answered that he was, and gave the particular place of his residence in the city of Denver. Nevitt was cross-examined as to both notices, but no evidence was elicited from him or any other witness tending to show that he was not the head of a family and residing with the same in this state when his goods were attached.
It is now claimed that the evidence does not show that Nevitt wa,s the head of a family and residing with them in the state on March 15, when the property was first attached. This slight discrepancy in dates does not appear to have been noticed in any way at the trial, nor was it noticed in argument in this court until the filing of the petition for a rehearing. We cannot, of course, say what the proof might have been if further evidence touching plaintiff’s family relations and residence at the time of the levy, had been taken at the trial; it is quite manifest, however, that in the court below, the evidence was accepted as sufficient to show that he was entitled to the benefit of the exemption laws as
As to matters assigned for error outside the record proper, the review by an appellate court should be confined to matters fairly presented before the trial court, and upon such review counsel should present their whole case in their first argument. A question like the one now under consideration should not be entertained for the first time in a petition for a rehearing. 1 Thompson on Trials, sec. 693 ; 2 Thompson on Trials, secs. 2394, 2773, 2778; Knoth v. Barclay, 8 Colo. 305" court="Colo." date_filed="1885-04-15" href="https://app.midpage.ai/document/knoth-v-barclay-6561298?utm_source=webapp" opinion_id="6561298">8 Colo. 305; Higgins v. Armstrong, 9 Colo. 57; D. & R. G. Ry. Co. v. Byan, 17 Colo. 98" court="Colo." date_filed="1891-09-15" href="https://app.midpage.ai/document/denver--rio-grande-railroad-v-ryan-6562205?utm_source=webapp" opinion_id="6562205">17 Colo. 98.
Counsel for appellants now cite the case of State v. Orahood, 27 Mo. App. 496" court="Mo. Ct. App." date_filed="1887-10-25" href="https://app.midpage.ai/document/state-ex-rel-evans-v-orahood-8259293?utm_source=webapp" opinion_id="8259293">27 Mo. App. 496, to the effect that the assignee of a promissory note given for the purchase price of personal property may levy upon such property to satisfy a judgment based upon such note, notwithstanding the property may be otherwise exempt from execution. The rule thus announced materially abridges the protection of the exemption statute, and is contrary to the rule of liberal construction adopted by this court. It is foreign to the spirit as well as the letter of the statute that a mere voluntary assignee of a simple promissory note should have any claim upon the original consideration of such note. Such a rule impresses upon negotiable instruments a quality not expressed upon their face. Moreover, the rule is altogether unnecessary. If the vendor of personal property desires to retain a lien for the purchase price which he can transfer, let him take a chattel mortgage, and thus give notice to all parties dealing with the property, and cut off all claims to exemption.
The other points upon which a rehearing is urged require no further opinion. The rehearing is denied.
Rehearing denied.