Gardenhire v. Glasser

• Decision Date: 16 June 1924
• Docket Number: Civil 2222
• Citation: 26 Ariz. 503,226 P. 911
• Parties: A. B. GARDENHIRE, Appellant, v. IKE GLASSER, Appellee
• Court: Arizona Supreme Court

226 P. 911

26 Ariz. 503

A. B. GARDENHIRE, Appellant, v. IKE GLASSER, Appellee

Civil No. 2222

Supreme Court of Arizona

June 16, 1924

APPEAL from an order of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Order reversed.

Mr Henry C. Kelly, for Appellant.

Mr Clement H. Coleman, for Appellee.

OPINION

LYMAN J.

A writ of garnishment was levied upon a debt due the appellant Gardenhire from an insurance company, as proceeds of a fire insurance policy covering the dwelling-house of Gardenhire, situated upon an unpatented homestead, claimed and occupied by himself and family under the provisions of the federal homestead statutes. Revised Statutes of the United States, par. 2289 (U.S. Comp. Stats § 4530).

This fund was claimed by Gardenhire as exempt, and disallowed. Revised Statutes of the United States, par. 2296 (U.S. Comp. Stats., § 4551); Revised Statutes of Arizona, par. 3302, subdiv. 16.

Whether or not the creditors of the homesteader may subject that fund, while it is in the hands of the insurance company, to the payment of their claims against the homesteader, is the only question raised by this appeal. The question is unobscured by any collateral or qualifying issue.

The exempt character of a dwelling-house located upon a federal homestead cannot be questioned. Estate of Harris, 16 Ariz. 1, Ann. Cas. 1916A, 1175, 140 P. 825; Faull v. Coke, 19 Or. 455, 20 Am. St. Rep. 836, 26 P. 662; Towner v. Rodegeb, 33 Wash. 153, 99 Am. St. Rep. 936, 74 P. 50. It is only when in place of a dwelling the proceeds of an insurance policy growing out of the fire, have taken the place of the building itself that any uncertainty arises as to its exemption. In the absence of any statute directly declaring such a fund to be exempt, the courts of most jurisdictions, applying the principle of construction to this statute which is applied to all exemption statutes of a liberal construction designed to give effect to the ultimate purpose and intent of such legislation, have held that the exempt character of the building was transferred to the indemnity arising from its loss, until, at least, it had passed into the hands of the insured. That construction is accepted by text-writers and courts as the general rule, to which there are few exceptions. Thompson on Homesteads and Exemptions, 750; Houghton v. Lee, 50 Cal. 101; Probst v. Scott, 31 Ark. 652; Armstrong v. Round, 106 Kan. 146, 9 A.L.R. 1255, 186 P. 979; Reynolds v. Haines, 83 Iowa 342, 32 Am. St. Rep. 311, 13 L.R.A. 719, 49 N.W. 851; Fletcher v. Staples, 62 Minn. 471, 64 N.W. 1150; Puget Sound Dressed Beef & Packing Co. v. Jeffs, 11 Wash. 466, 48 Am. St. Rep. 885, 27 L.R.A. 808, 39 P. 962; Strouse v. Becker, 44 Pa. 206; Westchester Fire Ins. Co. v. Goggan (Tex. Civ. App.), 203 S.W. 163.

In this state, however, the question is open to judicial construction. The legislature has enacted this rule into statute so plain and explicit in its terms as to leave no occasion for uncertainty:

"All moneys arising from fire or other insurance upon any property exempt from sale on execution." Revised Statutes of Ariz., par. 3302, subsec. 16.

Appellee undertakes to avoid the effect...