135 Ky. 154 | Ky. Ct. App. | 1909
Opinion op the court, by
Affirming-
An execution issued upon a judgment in favor of "Winstead against Hicks was levied upon two horses and a buggy, the property of the latter.' A bond of indemnity was required by the sheriff before selling the property, which was executed by the appellants. Thereupon the property was sold. This suit is upon that bond by the execution defendant, who claims that he was a housekeeper of this commonwealth, with a family, that those were his only work beasts, and that he had not the provision for his family and the
The appellants complain of the trial court’s conclusion of law and fact, as follows:
First. That the petition was not sufficient to allow a recovery for the animals. It is claimed the plaintiff did not specifically state that they were his only work beasts at the time of the levy, or that he had not then other personal property not disclosed sufficient to have made up the deficit in his provision. The allegations of the petition are that “the said two horses seized, levied on, and sold were his only work beasts, and by the .said illegal levy and sale he has been deprived of the use and services of said horses from the 7th of May, 1908, the date of said seizure, whereby he has been damaged as set out,” etc. As to the exempt provisions and provender, the allegation is: “That he did not-have sufficient provisions, including bread stuff 'and animal food, to sustain his family for more than one week; nor did he have sufficient provender suitable to live stock to sustain his live stock for more than one week;
Second. It is not now denied that Hicks was a housekeeper, entitled to the exemptions claimed; nor that the property was of less value than that found by the court. But it was made a ground for the motion for a new trial in the lower court, and for a reversal here that the evidence did not justisfy the finding qf the corirt of the fact that the execution defendant notified the sheriff before the sale, or before the execution of the bond of indemnity, that he claimed the property as exempt. The statute does not impose upon a debtor that duty. True, he may expressly or by his conduct waive the exemption. But, unless he does so, it is not perceived by what authority the court could impose upon him a condition upon which his statutory exemption was made to depend different from or in addition to what the statute had imposed. The courts have taken two views of the question whether the debtor must claim his exemption to be entitled to it. The principal difference
In McGee v. Anderson, 1 B. Mon. 187, 36 Am. Dec. 570, it was held that the execution defendant would le put to his election to claim one of three or more horses (where only two were exempt), one having-been levied- on by the sheriff under execution. This case seems to be the same in principle in its main aspect as the case relied on by appellants, viz., Commonwealth for the benefit of Breef v. Burnett, 44, S. W. 966, 19 Ky. Law Rep. 1836. In that opinion, in discussing- an instruction properly refused (but not copied in the opinion), the court observed: “Instruction No. 9 was properly refused for the reason it was the duty of appellant on or before the day of sale to make known to the officer or plaintiff' in the execution that lie (appellant) did not have on hand the provisions allowed by law to himself and family, and that
Third. The general rule is that in an action of trover the measure of damages is the value of the property, with interest (in the discretion of the jury) from the time of its conversion (Sanders v. Vance, 7 T. B. Mon. 209, 18 Am. Dec. 167), while in actions of
Although this is an action on the bond of indemnity, it is properly classified as belonging to that of actions of trover at the common law. The effect of the execution of the bond is, if the surety is good, to restrict the right of action for damages for the conversion of the property under the execution to an action on the bond. The makers of the bond are substituted in liability for the sheriff. But the execution of the bond does not prevent the debtor claiming the property levied on as exempt from maintaining an action against the sheriff who has levied upon it or the purchaser to recover the property as in detinue. Bethel v. Van Meter, 9 Ky. Law Rep. 331; Hoskins v. J. M. Robinson Co., 101 Ky. 667, 42 S. W. 113, 19 Ky. Law Rep. 877.
In neither instance is the character of the action, whether on the bond or against the officer or the purchaser or the plaintiff in the execution, different from the common-law actions of trover and detinue. It follows that the measure of damages allowed in those cases from ancient times and consistently is the correct measure upon the bond. Sections 492, 493, Sedgwick on Damages; Freeman v. Luckett, 2 J. J. Marsh, 390; Daniel v. Holland, 4 J. J. Marsh, 18; Justice v. Mendell, 14 B. Mon. 12.
In allowing a recovery of $125 for the use of the horses, and in addition to their value, the trial court erred in this case. But the court went further, and
The plaintiff (appellee) should have bad judgment for tbe value of tbe exempt property and interest, but no more. Tbe result of tbe judgment appealed from is not substantially different from what it would have been bad tbe court pursued tbe correct course in estimating tbe damages.
The original judgment of appellant against tbe appellee is not affected by tbe judgment appealed from.
Affirmed.