Harrington v. Smith

• Decision Date: 28 February 1890
• Citation: 23 P. 331,14 Colo. 376
• Parties: HARRINGTON v. SMITH et al.
• Court: Colorado Supreme Court

23 P. 331

14 Colo. 376

HARRINGTON v. SMITH et al.

Supreme Court of Colorado

February 28, 1890

Commissioners' decision. Appeal from district court, Larimer county.

Action by Perry Harrington against John L. Smith and Thomas H. Davy for trespass in seizing exempt property. Plaintiff was nonsuited, and appeals.

Haynes, Dunning & Annis, for appellant.

T M. Robinson, for appellees.

RICHMOND C.

May 29 1885, appellant was the head of a family, residing in Larimer county, Colorado, a carpenter by trade, and was the owner of two bay horses, of the value of $200; one lumber wagon, of the value of $80; one set of double harness, of the value of $25; one cow and calf, of the value of $50,--which he claimed were exempt from levy of attachment and sale under an execution. Smith was constable for that county; and on that day appellee Thomas H. Davy caused a certain writ of attachment to be issued and delivered to said Smith, and directed him to take and seize the above enumerated property. It appears that at the time of the levy, and even until after the 20th day of June of that year, appellant was temporarily absent from the state. He seeks to recover for the triple value of the property so seized and sold. On the 30th day of May, 1885, Davy wrote a letter to appellant informing him that he had attached all of his stock,--harness and wagon included. To this letter appellant replied, stating that he would return, without fail, by June 20th, and arrange everything satisfactorily, asking for a stay of proceedings until that date. In this letter no claim of exemption was set up, nor was the claim made by any member of his family. The sale of the property took place subsequent to the 20th of June, 1885, after the time when appellant had agreed to return and arrange matters. In addition to the above stock seized by the sheriff, it appears that the constable levied upon four other cows and one calf belonging to appellant. There seems to be no dispute about the ownership, nor that the stock levied upon was all that appellant owned at the time, nor of the fact that he was detained, and unable to reach Colorado prior to the sale under the execution. Motion for a nonsuit was granted, and exceptions noted. Thereafter a motion for a new trial was overruled. In denying the motion for a new trial, the court said that, 'where the debtor knew that his property was attached while it was yet within the control of the officer so that it could be returned to him, it was his duty to demand its return, or to give notice in some way of his disapproval of the act. But, even if he might be silent and be safe under such circumstances, if he says anything or does anything in respect to the levy upon his property, it must be a disapproval of the officer's act; or else the fact that he does say something, and does not do or say anything to disapprove of the levy, should be construed into an acquiescense.' The court formed its conclusion on the letter of June 9, 1885, written by appellant to his creditor which is in words and figures as follows: 'Tunnel Camp, Wyo., June 9, 1885. Thos. H. Davy, Esq.: Yours of May 30th at hand to-day. In reply, I will say that it is impossible for me to come home now, as the high water has washed out the head-gates, and the superintendent has gone to Cheyenne to get instructions from the company. If your letter had reached me one day sooner, I could have made other arrangements; but, as it is, I can't do anything. I wish you would postpone the case until the 20th, and I can come down and fix up everything satisfactory. I won't leave the work until the superintendent comes home. I may not gain anything, but it is left in my charge. Yours, PERRY HARRINGTON. Do the best you can for me, and I will pay you. I will be there on the 20th without fail.'

The judge, in the trial, intimated that he based his conclusion upon the principles laid down in Drake, Attachm. § 244 a. The principle there announced is as follows 'The defendant, if aware of the levy, must at the time claim the exemption, or he will be considered to consent to it. Manifestly, he cannot set up such a claim after judgment rendered against him in the attachment suit.' This principle is based upon Indiana authorities, which were undoubtedly influenced by the peculiar wording of the statute of that state, hereinafter referred to. The sole question for our consideration, therefore, is whether or not the conclusions of the court were correct. This particular question has received no direct consideration in any of the causes involving the question of exemption heretofore heard in this court. The General Statutes of this state (1883, § 32, p. 601) provide as follows: 'The following property, when owned by any person being the head of a family, and residing with the same, shall be exempt from levy and sale upon any execution or writ of attachment: * * * Working animals to the value of $200; one cow and calf;' 'tools and implements or stock in trade of any mechanic, minor, or other person, used and kept for the purpose of carrying on his trade or business, not exceeding $200 in value.' Section 34 of said act provides that, 'if any officer or other person * * * shall take or seize any of the articles of property hereinbefore exempted from levy and sale, such officer or person shall be liable to the party injured for three times the value of the property illegally taken or seized, to be recovered by action of trespass with costs of suit.' For the purposes of this discussion, the above is all of the statute necessary to be mentioned. It will be observed that nowhere in this statute referred to is there any language making it incumbent upon the debtor to...