Eckman v. Poor
| Citation | 87 P. 1088,38 Colo. 200 |
| Parties | ECKMAN v. POOR. |
| Decision Date | 03 December 1906 |
| Court | Supreme Court of Colorado |
Error to Larimer County Court; J. Mack Mills, Judge.
Action by R. S. Poor against John Eckman. Judgment was adverse to defendant on the issue of exemption, and he brings error. Reversed.
Jefferson McAnelly and Fred W. Stow, for plaintiff in error.
Garbutt & Clammer, for defendant in error.
A portable engine and boiler, with saw and lumber carriage with attachments, was levied upon by a constable under a writ of attachment from a justice's court.
The attachment debtor filed his affidavit, as required by section 2712, claiming the property as exempt under the eleventh subdivision of section 2562 of Mills' Ann. St. The subdivision is as follows: 'Eleventh. * * * that the tools, implements * * * not exceeding three hundred dollars in value, of any mechanic, miner or other person not being the head of a family, used and kept for the purpose of carrying on his trade and business, shall be exempt from levy and sale on any execution or writ of attachment while such person is a bona fide resident of this state.' The justice rendered a money judgment against the defendant sustained the attachment, and denied the claim of exemption. An appeal from the denial of the claim of exemption only was taken to the county court. Upon the trial of the claim of exemption the county court rendered judgment against the defendant. This judgment the defendant asks to have reviewed by a writ of error.
The plaintiff in error answers the statutory description of those entitled to exemption, and his claim that the articles were used and kept for the purpose of carrying on his trade and business is not controverted; but the defendant in error says that the defendant is not entitled to have the case reviewed here because the judgment on the trial of the claim of exemption is not a final judgment, but is incidental and collateral to the main suit. The statutes (sections 2711, 2712, Mills' Ann. St.) provide for the separate trial of the claim of exemption. The judgment determines that the defendant had no right to the property claimed as exempt. It fixed the right of the parties to the property in controversy, and is reviewable in this court. Standley v. Hendrie & Bolthoff Co., 25 Colo. 376, 55 P. 723; New York Life Ins. Co. v. Brown, 32 Colo. 365, 76 P 799.
We are of opinion that the property seized is exempt from execution. The...
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