Driggs & Co.'s Bank v. Norwood

• Decision Date: 07 May 1887
• Citation: 4 S.W. 448
• Parties: DRIGGS & Co.'s BANK and others <I>v.</I> NORWOOD.
• Court: Arkansas Supreme Court

Page 448

4 S.W. 448

DRIGGS & Co.'s BANK and others

v. NORWOOD.

Supreme Court of Arkansas.

May 7, 1887.

Appeal from circuit court Nevada county. In chancery.

Bill for injuction.

Atkinson & Tompkinson, for appellants. Montgomery & Hamby, for appellee.

SMITH, J.

Driggs & Co.'s Bank recovered a judgment against Norwood in the circuit court, and caused an execution to be levied on a carriage and harness. The levy was made February 7, 1884, and the sale was advertised for the eighteenth of the same month. The property was seized at the countyseat; and Norwood, living at the distance of 18 miles, was not apprised of such seizure until it was too late to give the five-days notice of filing his schedule and claim of exemption, contemplated by section 3006 of Mansfield's Digest. He thereupon rushed into equity to enjoin the sale. His bill set forth the circumstances which prevented his claim from being made earlier and in the regular way; and it alleged that the value of the property levied upon, together with that of all other personal property owned by him, was not equal to his constitutional exemption. A temporary injunction was awarded, and a restoration of the property was directed. A demurrer to the bill having been overruled, the defendants answered, and insisted on the lien acquired by their levy; but the injunction was made perpetual.

The pleadings and evidence show plainly enough that Norwood is entitled to claim this property as exempt from execution. But the statutory method for making the claim is exclusive of all others. In Settles v. Bond, ante, 286, we decided that replevin would not lie for the exempt property, not because it was in custodial legis, but because, until a schedule was filed, the execution defendant was not pursuing the remedy pointed out by the statute. Neither can a bill in equity be allowed to restrain the sale of chattels under execution unless it shows that the plaintiff in such bill has no other means of stopping the sale, and that by such sale irreparable damage will result to him. Lovette v. Longmire, 14 Ark. 339; Murphy v. Harbison, 29 Ark. 340; Stillwell v. Oliver, 35 Ark. 184; Jacks v. Bigham. 36 Ark. 481.

In Nichols v. Claiborne, 39 Tex. 363, it was held that a sale of exempt property might be restrained by the judgment debtor. But this seems to be contrary to principle. And it is difficult, if not impossible, to conceive of any state of circumstances which would call for the interference of a court of equity,...