Childers v. Brown

• Decision Date: 06 June 1916
• Citation: 158 P. 166,81 Or. 1
• Parties: CHILDERS v. BROWN.
• Court: Oregon Supreme Court

158 P. 166

81 Or. 1

CHILDERS v. BROWN.

Supreme Court of Oregon

June 6, 1916

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Replevin by James H. Childers against Ben J. Brown. Demurrer to reply overruled, and judgment for plaintiff, and defendant appeals. Affirmed.

J. I Myers commenced an action to recover money from James H Childers, and on the next day, November 24, 1915, caused Ben J. Brown, the sheriff of Malheur county, to attach and take into his custody a team, wagon, and harness owned by Childers. On December 10, 1915, Childers commenced this action to replevin the attached property by filing a complaint which contains the usual allegations. The answer justifies the taking by averring the attachment. The reply seeks to avoid the effect of the attachment by claiming that the property is exempt from seizure. To support the claim of exemption and right to a return of the property, the reply avers:

"That on the 24th day of November, 1915, the date on which said personal property described in the complaint and answer were wrongfully and unlawfully taken from the possession of plaintiff, and for some time prior thereto, the said team of geldings, logging harness and Studebaker wagon described in the complaint herein, were being used by the plaintiff for the purpose of earning a living for the support of his family, and were and are habitually used for such purpose by plaintiff, and were and are the only personal property of such nature whereby the plaintiff could earn a living for the support of his family. That on the 24th day of November 1915, the plaintiff duly notified the defendant that he claimed said personal property and the whole thereof as exempt from attachment and execution, under the laws of the state of Oregon, and prior to the commencement of this action, and as soon as plaintiff could secure legal services he served on the defendant a written affidavit under oath demanding the release of said property and the whole thereof for the reason that said property was habitually used by him in making a living for himself and family, and claimed the whole of said property as exempt from attachment and execution, and that said property was and is exempt from attachment and execution, under and by virtue of the laws of the state of Oregon, and any taking of said property and the whole or any part thereof by defendant, whether acting under a writ of attachment or otherwise is wrongful and unlawful, for the reason that said property is exempt from attachment and execution, and said sheriff, defendant herein, has full and complete instructions under any writ of attachment issued to him, not to attach or levy upon any exempt property, made so by the laws of the state of Oregon, but defendant did then, ever since has, and does now refuse to return said property to plaintiff."

The defendant demurred to the new matter appearing in the reply "on the grounds that the same does not state facts sufficient to constitute a defense to the defendant's answer or to any part thereof." The demurrer was overruled, and after a trial the verdict of the jury and judgment of the court were against the defendant, who has appealed.

H. C. Easthan, of Vale, and Smith & Smith, of Baker, for appellant. Ralph W. Swagler, of Ontario, for respondent.

HARRIS, J. (after stating the facts as above).

"The principal issues," quoting from the abstract of record filed by defendant, "are: Does the new matter set up in the reply plead statutory exemption? and, was the judgment based on sufficient evidence?" The questions can best be answered by first directing attention to the language of the statute and noting its scope and meaning.

The material part of the statute, which measures the rights of the plaintiff, reads thus:

"All property * * * of the judgment debtor, shall be liable to an execution, except as in this section provided. The following property shall be exempt from execution, if selected and reserved by the judgment debtor or his agent at the time of the levy, or as soon thereafter before sale thereof as the same shall be known to him, and not otherwise: * * * 3. The * * * team, vehicle, harness * * * necessary to enable any person to carry on the trade, occupation, or profession by which such person habitually earns his living, to the value of $400." Chapter 13, Laws 1915, amending section 227, L. O. L.

If the wagon, team, and harness were necessary to enable Childers to carry on the occupation by which he habitually earned his living, then he was entitled to a return of the property, provided the claim of exemption was made at the time of the levy or as soon thereafter as it became known to him. Since exemption statutes are remedial in character, they are given a liberal construction. Blackford v. Boak, 73 Or. 61, 143 P. 1136; Tishomingo Savings Inst. v. Young, 87 Miss. 473, 40 So. 9, 3 L. R. A. (N. S.) 693, 112 Am. St. Rep. 454, 6 Ann. Cas. 776. And this rule of construction must constantly be kept in mind when interpreting the words found in the statute.

The term "necessary," as it is used here, signifies "reasonably necessary" or "convenient" or "suitable," and it does not mean "indispensable," or, as contended by the defendant during the trial, "absolutely necessary." Stewart v. McClung, 12 Or. 431, 435, 8 P. 447, 53 Am. Rep. 374; State v. Young, 74 Or. 399, 407, 145 P. 647; In re Parker, 5 Sawy. 58, 61, F. Cas. No. 10,724; 12 A. & E. Ency. Law (2d Ed.) 132; 18 Cyc. 1418.

Standing alone the word "occupation" means: "The principal business of one's life." Webster Dict. "Habitual or stated employment." Cent. Dict. "Vocation, calling, trade, the business in which one principally engages to secure a living, the employment by which one generally gets his living. 3 Words & Phrases (Second Series) 685; 29 Cyc. 1344. The term "occupation" is comprehensive in its signification and includes any employment in which a person is engaged to procure a living. 12 A. & E. Ency. Law (2d Ed.) 105. The statute itself defines the term so as to include only the occupation by which a person "habitually earns his living," and therefore the team, wagon, and harness were exempt if they were reasonably necessary, or convenient, or suitable to enable Childers to carry on the employment by which he habitually earned his living.

It is not essential that the property should have been used exclusively to carry on the occupation by which he habitually earned his living because an occasional use for other purposes will not defeat the right of exemption. 12 A. & E Ency. Law, 132; Stanton v. French, 91 Cal. 274, 27 P. 657, 25 Am. St. Rep. 174; 11 R. C. L. p. 519. The right of exemption is not lost if the owner is not actually using the property in his occupation at the very time of the levy, nor is the privilege extinguished if the owner is temporarily not engaged in his occupation. 12 A. & E. Ency. Law (2d Ed.) 132; 18 Cyc. 1413. The exemption is preserved if the...