Allen v. Coates
| Decision Date | 04 January 1882 |
| Citation | 11 N.W. 132,29 Minn. 46 |
| Parties | William N. Allen v. Joseph Coates |
| Court | Minnesota Supreme Court |
This action was brought in the municipal court of St. Paul for the taking and conversion, by defendant, of a buggy, alleged to be the property of plaintiff. Defendant, in his answer justified his taking, as sheriff of Benton county, under a writ of attachment, followed by judgment and execution, in an action against the plaintiff. The plaintiff replied, alleging that the buggy was exempt from seizure or sale under any writ of attachment or execution. After the preliminary proceedings recited in the opinion, the case was tried by the court, a jury being waived, and judgment ordered and entered for plaintiff, from which defendant appeals.
Judgment affirmed.
C. D Kerr and L. W. Collins, for appellant.
A buggy is not exempt from execution. Dingman v. Raymond, 27 Minn. 507; Quigley v. Gorham, 5 Cal. 418; Favers v. Glass, 22 Ala. 621; Smyth on Exemptions, §§ 523, 579; Thompson on Exemptions, 820; Zielke v Morgan, 7 N.W. 651; Fowle, v. Hunt, 48 Wis. 345; Russell v. Lennon, 39 Wis. 570; Carty v. Drew, 46 Vt. 346; Corp v. Griswold, 27 Iowa 379; Tuttle v. Buck, 41 Barb. 417; Dains v. Prosser, 32 Barb. 290; Grimes v. Bryne, 2 Minn. 72, (89;) Temple v. Scott, 3 Minn. 306, (419;) Rothschild v. Boelter, 18 Minn. 361.
Mead & Rotert, for respondent
On the appearance day, the defendant appeared specially and moved to dismiss, on the ground that the summons was not served in time, -- a point which, as appeared from the proof of service, was not well taken, and the motion was properly overruled. The defendant then entered his appearance, was given till August 21, 1880, to answer, and the cause was continued to August 24, 1880. After that there were three continuances, -- the last being to September 22d, -- without any extension, so far as the record shows, of the time to answer. Defendant then applied, on an order to show cause, granted August 24th, to set aside the general appearance, the service of the summons, and the return thereof, and for a dismissal of the action, upon affidavits showing that it had been improperly served. As the defect in the service had been waived by the general appearance, the objection came too late; and, as it was not shown that the general appearance was induced by fraud or mistake of fact, there was no reason to set it aside.
The order denying the application granted leave till October 5th to file an answer, and the cause was continued to that day. On that day, on an affidavit and demand served September 29th, defendant moved for a change of venue, which was denied. As the time for defendant to move for a change of venue, as a matter of right, had expired, with the expiring of the time to answer, (Gen. St. 1878, c. 66, § 49,) and, as the motion was made upon no other ground than that the action was not brought in the proper county, the motion was properly denied; for the leave to answer did not restore him to any right which he had lost, except the right to answer. As, therefore, his application was too late under section 49, and there is no other provision of statute under which he could apply for a change, as a matter of right, it is unnecessary for us to determine whether under that section he would have been entitled to a change had he applied in time.
The answer attempts to set forth, as a counterclaim, matters in the nature of actions for malicious prosecutions of other actions for the cause of action set forth in this complaint and demanding $...
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