Amend v. Murphy

• Decision Date: 30 September 1873
• Citation: 1873 WL 8464,69 Ill. 337
• Parties: ANDREW AMENDv.MARY A. MURPHY.
• Court: Illinois Supreme Court

69 Ill. 337

1873 WL 8464 (Ill.)

ANDREW AMEND

v.MARY A. MURPHY.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. G. D. A. PARKS, for the appellant.

Messrs. FELLOWS & LEONARD, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of trespass, commenced by Mary A. Murphy, against Andrew Amend, on the 20th day of September, 1871, in the circuit court of Will county.

The declaration contains four counts. The first three are, in substance, alike, averring that plaintiff was by profession a teacher of music; that she had a pianoforte, an implement of her profession, which defendant, as a constable, took and sold by virtue of a distress warrant; that the piano was exempt, and defendant had notice, before levy, that plaintiff claimed it as exempt; that it was of the value of $100, and alleging treble damages under the statute.

The fourth count was an ordinary one, in trespass. Plea of general issue was filed, the cause was tried before a jury, and verdict in favor of plaintiff for $240.

The facts, as disclosed by the record, are these: The plaintiff was a widow, with a family consisting of an aged mother and two children, who were dependent upon her for support; that the business of plaintiff was that of music teacher, and that she used the piano which was levied upon and sold by defendant as an implement of her business, and at the time of the levy she had a class of ten pupils; that the defendant, as a constable, took the piano upon a distress warrant for rent; before the taking of the property, he was notified that the plaintiff claimed it as exempt, under the statute; that the piano was worth $100.

It is insisted by appellant that the court erred in refusing to give his fourth instruction, which is as follows:

“Although the piano came within the exemption of the statute, in its character as an implement of the plaintiff, used in her profession as a music teacher, yet, if the evidence satisfies the jury that, at the time of the distress or before the sale, she had notice or knew of the levy, and, also, that she had other property subject to distress, which she did not surrender or offer to surrender, then the law is, that she thereby lost her privilege of exemption, and she can not recover in this action.”

This instruction was properly refused. There was no evidence before the jury that the plaintiff had other property subject to distress, and hence there was no evidence on which to base the instruction. It is true, evidence was introduced that showed that plaintiff had a gold watch and chain, but, on motion of plaintiff, this testimony was excluded from the jury, and the defendant did not except to the ruling of the court on that question. The instruction was properly refused for another reason: the evidence shows that, before the defendant took the property, he was notified by the plaintiff that she claimed it as exempt. The officer having notice of this fact, and the piano being specifically exempt under the statute, the plaintiff was not bound to turn out other property, if any she had, in order to enable her to recover from the officer. The rule would be different if the defendant had received no notice that the property was claimed as exempt until...