53 Neb. 468 | Neb. | 1898
This suit was brought for damages for the conversion of certain goods, wares, harness, and merchandise belonging to plaintiff. The district judge directed a verdict for defendant. The facts which must control the decision of the cause are, briefly stated, as follows: Plaintiff was a married man, residing with his family in the town of Cook, this state, where he was engaged in the business of making harness. His entire personal property did not exceed in value the sum of $500. He owned the lot on which his harness-shop was located, but did not reside thereon. His Avife was the owner of three vacant and unoccupied lots in the town of Cook. Plaintiff and his wife lived in rented property, and at no time since their marriage did they reside upon, or occupy as a home, any real estate belonging to them, or either of them. The defendant, as sheriff of Johnson county, levied upon, took into his own possession, and sold, the goods' in dispute under and by virtue of two executions issued upon two separate judgments recovered against plaintiff, and the proceeds of the sale were applied towards the satisfaction of said executions and judgments. Prior to the sale plaintiff filed with the defend-, ant, in accordance with the proAdsions of section 522 of the Code of Civil Procedure, an inventory, under oath, of the whole of the personal property owned by plaintiff, and demanded that the same be appraised and released from the levies as exempt, with which request defendant refused to comply.
'The point presented for consideration is whether the property levied upon was exempt under the laws of the state. The question is one of statutory construction. Section 521 of the Code of Civil Procedure is as follows:
“Sec. 521. All heads of families who have neither lands, town lots, or houses subject to exemption as a homestead, under the laws of this state, shall have exempt from forced sale on execution the sum of five hundred dollars in personal property.”
In construing the provisions of said section 521, in Stout v. Rapp, 17 Neb. 470, the court observed: “In order to secure the benefit of this section it must appear that the ‘‘head’ of the family has no real estate exempt. If the head of the family has a home in Avhich the family resides, the exemption provided for by this section does not exist. They cannot have both. (Axtell v. Warden, 7 Neb. 182.) If he had no homestead, he Avould not only be entitled to this exemption, but either party (husband or Avife) might select it from the personal property of the husband.”
In Williams v. Golden, 10 Neb. 434, Cobb, J., speaking of the intention of the legislature in enacting said section 521, said: “Evidently it avus their intention to give the landless debtor an exemption of personal property in lieu of the more Avealthy debtor’s homestead exemption.”
There is no room to doubt that every head of a family' in this state is entitled to claim personal property to the value of |500 as exempt from sale under execution Avhere he has no real estate or house constituting a. homestead, or in respect of which exemption from judicial process could be successfully asserted. Under the undisputed facts in the case at bar no homestead character had been inrpressed upon either the business pronertv owned
We have been urged to enter a judgment in this court in favor of the plaintiff in accordance with section 594 of the Code of Civil Procedure, for the minimum value placed upon the property by the witnesses. An examination of the evidence discloses that this is not a proper case for the enforcement of the provisions of said section, as there are controverted facts which should be determined by the trial court, or a jury. The judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.