Green v. Aker
| Decision Date | 03 December 1858 |
| Citation | 11 Ind. 184 |
| Parties | Green v. Aker |
| Court | Indiana Supreme Court |
From the Randolph Circuit Court.
The judgment is reversed with costs. Cause remanded.
W. A Peelle, for appellant.
S Colgrove, for appellee.
This was an action to recover the possession of personal property commenced by Aker before a justice of the peace, before whom a motion was made by the defendant to dismiss the cause for want of a sufficient affidavit. The motion was sustained, and the cause dismissed. The plaintiff appealed, and in the Circuit Court the defendant again moved to dismiss for the same reason. Pending the motion, the plaintiff obtained leave and filed an amended or additional affidavit, whereupon the motion to dismiss was overruled, to which the defendant excepted.
This presents the first question. The last affidavit filed, states that the plaintiff was a resident householder of that county; that he was the absolute owner, and entitled to the possession of the property, describing it; that the defendant, a constable, by virtue of an execution against the property of the plaintiff, issued, &c., upon, &c., levied upon said property, of the value of 40 dollars, and took it out of the possession of the plaintiff; that the plaintiff had not 300 dollars' worth of personal property, and he claimed the said property was and is exempt from execution, and he so informed the constable, and demanded that his property be valued and set off to him; and that he selected an appraiser, and notified said defendant thereof, who refused to set off said property; whereupon the plaintiff demanded said property, &c. The affidavit filed before the justice was in substance the same. There was a complaint in the usual form.
By § 22, art. 1, of the constitution of Indiana, it is provided that "the privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws," &c. 1 R. S. p. 45. In pursuance of this provision, a statute was enacted (2 R. S. p. 337), declaring that "an amount of property not exceeding in value 300 dollars owned by any resident householder, shall not be liable to sale on execution, &c., for any debt growing out of or founded upon a contract, express or implied, after," &c. An act was passed to "revise, &c., the rules, practice, pleadings, &c., in civil cases in the Courts of this state," &c. This was approved June 18, 1852 (2 R. S. p. 27), and contains, among other things, an article upon the "claim and delivery of personal property," by which it is provided (§ 129) that the claimant of such property, &c., must make an affidavit, showing, among other matters, that the same has not been "seized under an execution, &c., against the property of the plaintiff, or if so seized, that it is by statute exempt from such seizure." There is another statute, approved June 9, 1852, providing for the election, &c., of justices of the peace, and defining their jurisdiction, &c., by § 71 of which, it is provided, among other things, that in a proceeding before a justice to recover personal property, the affidavit of the plaintiff must state "that the same has not been taken by virtue of any execution or other writ against him." 2 R. S. p. 464.
The appellant insists that the statute last referred to, should be strictly followed in proceedings before justices to recover personal property; and that the other statute has application only to such proceedings in the Common Pleas and Circuit Courts.
If the act approved June 18, applies as well to the proceedings for the recovery of property in a justice's Court as to those of a like character in other Courts, then the position assumed by the appellant cannot be maintained; for this being the last expressed will of the law-making power...
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