First Nat. Bank of Mason City v. Larson

• Decision Date: 24 November 1931
• Docket Number: No. 41063.,41063.
• Citation: 239 N.W. 134,213 Iowa 468
• Parties: FIRST NAT. BANK OF MASON CITY v. LARSON ET AL.
• Court: Iowa Supreme Court

213 Iowa 468

239 N.W. 134

FIRST NAT. BANK OF MASON CITY

v.LARSON ET AL.

No. 41063.

Supreme Court of Iowa.

Nov. 24, 1931.

Appeal from District Court, Cerro Gordo County; M. F. Edwards, Judge.

Appeal from a judgment of the district court, sustaining the motion of the defendant (appellee) to discharge certain property alleged by the defendant to be exempt and not subject to the levy of attachment of plaintiff (appellant). The facts appear in the opinion.

Reversed.

R. F. Clough, of Mason City, for appellant.

Senneff, Bliss, Witwer & Senneff, of Mason City, for appellee.

GRIMM, J.

In May, 1931, the plaintiff bank filed its petition in action at law to recover judgment on two promissory notes. A writ of attachment was secured and a levy was made. On May 26, 1931, the defendant filed a motion to discharge certain personal property from the attachment. A resistance was filed, and the court sustained the motion and discharged all the property covered by the attachment except two desks, three straight back chairs, two swivel office chairs, and one table. The property in question is listed as follows:

“One 5-passenger 1927 Packard Sedan, Model 426,

Motor No. 96575, serial No. 09389, license No. 17-9295.

1 complete brake testing machine.

1 Rusco riveting machine No. 71.

3 vises; 1 Black & Decker bench grinder. No. 42691-A.

2 Car jacks (one Weaver and one Red Devil).

1 Black & Decker electric drill and stand.

1 Valve refacer No. 650.

2 Desks; 3 straight back chairs; 2 swivel office chairs.

1 Table; 1 Curtiss Power Washer, Type R. A.

1 Connecting rod aligner assembly, 1 6 ft. stepladder.

1 Grease gun.”

The articles italicized are the ones not released from the attachment.

It appears from the record that at the time of the levy the defendant was doing business under the trade-name of E. W. Larson Company; Larson being the sole owner of the business and the property involved.

The defendant is a married man and the head of a family. From the affidavit which he made in support of his motion, we quote the following:

“That I have no vehicle of any kind, except those taken under the writ in said cause, and that it is necessary for me to use an automobile in the earning of a livelihood.

I further state that I am an auto mechanic and that all the tools mentioned in the foregoing motion are tools essential for use by me as such mechanic and will be essential for me to use in the earning of a living for myself and family.

That the garage which was operated by me has been closed under the writ of attachment in said cause and that it is essential for me to have the use of said tools in making said living.”

Aside from a general statement in the motion that all of the personal property seized under attachment is “exempt from execution,” there is no further evidence on behalf of the defendant. The resistance to the motion expressly denies the exemption of the property, and alleges in substance that the business of the said Larson Company was the sale, at retail, of automobiles and motor vehicles; that in connection with the sale of automobiles and motor vehicles the said defendant company operated a repair department which was a part of the general business of the said defendants, and the same was operated in connection with said business for profit; that the plaintiff expressly denies that the said E. W. Larson was engaged in said business as a mechanic; and it is denied that he did any mechanical work. It is claimed he was the manager of the general business conducted under the name of E. W. Larson Company, and spent his time in promoting the sales of said business, that the mechanical work of repair was conducted by employees, for the purpose of profit, in the general business, and that Larson had not for many years been engaged in such occupation as a mechanic, and that the articles listed were in fact capital owned and used by the defendants for the purpose of profit in the operation of an extensive motor vehicle sales business, and were not used by the defendants for carrying on a trade.

In support of this resistance, there was filed an affidavit by one of the mechanics engaged in the business conducted by Larson from which it appears that, when the businesswas first opened, the affiant Grobe had a percentage contract with Larson on the repair work. This was afterwards changed to a straight salary. It appears that at times there were three mechanics working in the shop and at other times four. The affidavit of Grobe contains, among other things, the following: “Larson devoted his time to the general management of the automobile sales business; never did any work on the cars since I went to work for him in 1929, except about three weeks ago he put on four wheels on a new Chrysler 70. That is the only work that I saw him do in three years that I was with him. * * * That during all of the time that I have worked with and for E. W. Larson, I have had charge of the repair or service department of the business. * * * That during all the time I have worked in connection with the said E. W. Larson, he has not in fact engaged as a mechanic in the shop, and has not undertaken to do any general mechanical work in reference to the repair and service of automobiles.”

I. We will first consider the question of the exemption of the tools. Subsection 17 of section 11760 of the Code of 1927, covering exemptions, is as follows: “The proper tools, instruments, or books of the debtor, if a farmer, mechanic, surveyor, clergyman, lawyer, physician, teacher, or professor.”

If these tools are to be held exempt to Larson, it must be upon the ground that he, at the time of the levy, was a mechanic.

[1][2] A careful examination of the evidence in support of Larson's claim discloses that he merely asserts as a conclusion that he is an auto mechanic without in any sense or to any extent specifying the manner or extent to which, if at all, he was engaged as a mechanic at the time of the levy. He asserts as a mere conclusion that it will be essential for him to have these tools for use as a mechanic to support himself and his family. In other words, his showing is entirely void of any evidence that, at the time of the levy or immediately previous thereto, he was engaged as a mechanic or that the tools in controversy were being used by him at the time of the levy as an auto mechanic.

[3] The record quite clearly and satisfactorily shows that, instead of being a mechanic, he was engaged as the proprietor of an automobile salesroom where he showed and promoted the sale of automobiles. The repair department was a separate department of the general business conducted by Larson, and the work was done by employees. Larson was not acting as a mechanic. The mere fact that he might have, in a moment of stress, placed, or assisted in placing, some wheels on a new car which was being assembled in his place of business as a salesroom, falls...