Furrow v. Zollars

• Citation: 8 S.D. 522,67 N.W. 612
• Parties: FURROW, Plaintiff and appellant, v. ZOLLARS, Pennington County Sheriff, Defendant and respondent.
• Decision Date: 24 April 1896
• Court: South Dakota Supreme Court

8 S.D. 522

67 N.W. 612

FURROW, Plaintiff and appellant, v. ZOLLARS, Pennington County Sheriff,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. Wm. Gardner, Judge

Affirmed

Schrader & Lewis

Attorneys for appellant.

Chauncey L. Wood, Charles J. Buell

Attorneys for respondent.

Opinion filed April 24, 1896

FULLER, J.

This appeal is from an order sustaining a demurrer to the complaint of a judgment debtor in an action against a sheriff, to recover the value of twenty-five head of cattle claimed to be exempt, and which were seized and sold under an execution. The facts essential to a determination of the only question of law presented are as follows: On the 6th day of September, 1893, respondent seized and took into his possession, under an execution directed against the property of appellant, one hundred head of cattle. Claiming to be the owner of and entitled to the immediate possession of the cattle thus seized, Martha E. Furrow commenced an action in claim and delivery against respondent, by virtue of which said cattle were taken by the coroner from the possession of respondent sheriff and delivered to the plaintiff, therein, on the 9th day of September, 1893. Upon the trial which took place on the 7th day of June, 1894, Martha E. Furrow was adjudged to be the owner and entitled to the immediate possession of seventy-five head of the cattle, and the remaining twenty-five head were found to be the property of the judgment debtor, to the immediate possession of which respondent herein was adjudged to be entitled by virtue of the seizure thereof on the 8th day of September, 1893, under the execution above mentioned. After the entry of judgment in the claim and delivery action and prior to the redelivery of the twenty-five head of cattle to the respondent sheriff, which occurred on the 3d day of July, 1894, and also upon the day immediately following said redelivery, appellant as the head of a family and in the form contemplated by statute, claimed said property as exempt and demanded that the levy theron be released.

Nine months having intervened since the levy and the date of written notice thereof, appellant’s claim for exemptions was disregarded by respondent and the property was, by order of the court, duly advertised and sold, and the proceeds were applied to the satisfaction of the judgment upon which said execution was issued. As the property was taken from the sheriff by the plaintiff in the action in claim and delivery, before the expiration of the five...