Baldwin v. Talbot

• Citation: 43 Mich. 11,4 N.W. 547
• Court: Michigan Supreme Court
• Decision Date: 11 February 1880
• Parties: BALDWIN v. TALBOT.

4 N.W. 547

43 Mich. 11

BALDWIN v. TALBOT.

Supreme Court of Michigan

February 11, 1880

An action of replevin was commenced in justice court against an officer in the name of D.T. Baldwin. He appealed to the circuit court as David T. Baldwin. Held, that if there was any misnomer it was not thereafter material. The fact that a judgment debtor has mortgaged some of his property will not prevent his claiming exemption to the full amount allowed by statute from that part that is unencumbered. A party is not prevented from claiming property as exempt in one county because he may have other property in another county not levied on, from which he might, if he chose, select his exemption. The judgment debtor not having seen fit to claim as exempt, property that was mortgaged, questions that might arise in such case are immaterial. Nor is it material that he did not claim all that he was entitled to.

Error to Cass.

M.A. Thompson, for plaintiff in error.

L.B Desboignes, for defendant in error.

CAMPBELL J.

Talbot sued Baldwin in replevin to recover a horse which Baldwin had seized on execution. Talbot claimed the horse as exempt, and there was testimony showing him entitled to the exemption. Baldwin levied on his horse and upon some mortgaged property besides, including another horse and a bugy. When he made the levy he was instructed to disregard Talbot's claim of exemption, and he intentionally omitted to take any steps to enable Talbot to select, and refused to give up the animal in question. This levy was made in Cass county. There was some evidence that Talbot had some property in another county which would have been within the right of exemption had it been seized on execution.

An objection was made and overruled below, that the replevin was void because brought against D.T. Baldwin instead of David T. Baldwin. No misnomer was pleaded, and the original judgment, which was rendered before a justice, was appealed by Baldwin to the circuit court, under his full name, after pleading on the merits below. Under these circumstances, if there was any informality, it was one which the record furnished means of amending, and is no longer material.

An offer was made in the circuit court to show that Talbot had given a chattel mortgage on his other property, and to show fraud in that mortgage, which, it is claimed, was excluded by the court. It is somewhat difficult to tell just what was objected to. The...