41 Kan. 288 | Kan. | 1889
The opinion of the court was delivered by
The insufficiency of the petition is first presented, and that it is fatally defective will be readily seen. It fails to describe who is plaintiff and who is defendant, either in the title or elsewhere, except as it may appear from the order or position in which the names are placed in the heading. Then there is an omission to name the pleading by inserting the word “petition” after the title of the cause, as the code positively requires. As the case comes to us, probably neither of these objections is so serious as to be fatal; but another and more serious one is raised by the objection to the introduction of any testimony, which was made at the beginning of the trial. It is nowhere stated that Wilhite unlawfully detained the property from the plaintiff, nor is it even alleged that he had it in possession in any way or for any purpose. The gist of the action of replevin under our code is the unlawful detention of the property by the defendant as against the plaintiff; and to maintain the action the plaintiff must allege this fact in his petition. (Wilson v. Fuller, 9 Kas. 176; Hoisington v. Armstrong, 22 id. 110.)
There is a recitation in the record that the affidavit filed in the case was “in due form of law, and sufficient;” and it is suggested that, being so, it must have contained the allegation
As the petition can be and doubtless will be amended when the case is remanded, we have concluded to examine the principal point of controversy between the parties upon the merits of the action, which is the exemption of the property seized and sold by the plaintiff in error. Williams was the head of a family, and his occupation was soliciting life insurance in Emporia and in the surrounding country, embracing. Lyon and adjoining counties. He purchased the horse, harness and buggy for the purpose of carrying on his business, for which they were adapted, and they were being so used when the sheriff levied upon them. In regard to the horse, there can be no question that it was exempt under the fifth subdivision of § 3 of the act relating to exemptions. The language em
It is equally clear that the buggy and harness were exempt to the debtor under subdivision eight of § 3 of the same act, which provides that there shall be exempt “the necessary tools and implements of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business, and in addition thereto stock in trade not exceeding four hundred dollars in value.” Applying the liberal construction to which exemption laws are entitled, and which this court has always given them, the business of soliciting insurance is within the statute quoted, and the buggy and harness must be held to be within the description of tools and implements used and kept by the debtor for the purpose of carrying on his business. This view was substantially held in Davidson v. Sechrist, 28 Kas. 324. There, a resident of the state, not the head of a family, who was an insurance agent and abstracter of titles, claimed that an iron safe, a cabinet and table, and a set of abstracts, were exempt as the necessary tools and instruments used and kept for carrying on his business. The exemption was claimed under the third clause of § 4, and the language there employed is almost identical with subdivision eight of § 3, giving the exemption to heads of families, and which has been quoted. It was held by the court that the phrase “mechanic, miner, or other person” was sufficiently broad to include the insurance agent, and that the property named came within the description of tools and instruments used and kept for the purpose of carrying on his trade or business, and that a contrary holding would not be in accord
We think the court correctly held the property to be exempt, but for the error heretofore mentioned the judgment must be reversed, and the cause remanded for such further action as the parties hereto desire to take.