Eastern Mfg. Co v. Thomas
| Decision Date | 04 May 1909 |
| Citation | 64 S.E. 401,82 S. C. 509 |
| Court | South Carolina Supreme Court |
| Parties | EASTERN MFG. CO. v. THOMAS, Sheriff. |
Exemptions (§ 45*)—Exemption of Personal Property Instead of Homestead — "Tools and Implements of Trade"—Automobile.
An automobile, not being a tool or an implement of trade, is not exempt from levy and attachment under 1 Civ. Code 1902, § 2631, as amended by the act approved February 20, 1904 (24 St. at Large, p. 412), exempting from attachment tools and implements of trade.
[Ed. Note.—For other cases, see Exemptions, Dee. Dig. § 45.*
For other definitions, see Words and Phrases, vol. 8, pp. 7000-7005, 7817.]
Petition by the Eastern Manufacturing Company for mandamus against W. W. Thomas, sheriff, to compel respondent to levy on certain property. Granted.
T. B. Butler, for petitioner.
This is an application for mandamus in the original jurisdiction of this court. The petitioners allege that the respondent as sheriff refuses to levy upon an automobile the property of one Walter Baker, with a proper execution in favor of petitioners. The return of the sheriff admits the allegations of the petition to be true, but says there is an apparent conflict between the statute and the Constitution with reference to homestead exemption for persons not the head of a family. While 1 Civ. Code 1902, § 2031, does appear to allow to such a person a homestead, not only in necessary wearing apparel and tools and implements of trade, but "other property, " these words "or other property" have been stricken from the statute by an act of the General Assembly (24 St. at Large, p. 412) approved February 20, 1904. So there is no conflict between the Constitution and the statute, and, the petition having been admitted as true, it is the plain duty of the respondent, as sheriff, to make the levy as prayed for.
It is therefore ordered and adjudged the respondent do forthwith make the levy upon and enforce the petitioner's execution upon the said automobile of the said Walter Baker as it does not appear said automobile is a tool or an implement of trade, and is not exempt from levy and attachment under the homestead law to a person not the head of the family.
*.For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes
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