In re Crook

• Decision Date: 14 January 1915
• Docket Number: 5351.
• Citation: 219 F. 979
• Court: U.S. District Court — Western District of Washington
• Parties: In re CROOK et al.

219 F. 979

In re CROOK et al.

No. 5351.

United States District Court, W.D. Washington, Northern Division.

January 14, 1915

G. D Eveland, of Everett, Wash., for bankrupt.

Louis A. Merrick, of Everett, Wash., for trustee.

NETERER District Judge.

This is an application on the part of bankrupt to set aside, as exempt, personal property, other than money, of the value of not to exceed $250, in lieu of the animals provided in subdivision 4 of section 563, Rem. & Bal. Annot. Codes and Statutes of Washington. It is admitted that the bankrupt is the head of a family and is entitled, under said section, to exercise the right of exemption; that, at the time of filing his petition in bankruptcy and schedules, he did not have the animals specified in subdivision 4, supra, and did have the personal property selected, and did at that time, in writing in conformity to the Bankruptcy Act (Act July 1, 1898, c 541, 30 Stat. 544 (Comp. St. 1913, Sec. 9585 et seq.)) express a desire to select such personal property.

The referee denied the right of the bankrupt to select the property selected in lieu of the animals, for the reason that the Supreme Court of Washington, in Creditors' Collection Association, Appellant, v. Frank E. Bisbee et al., Respondents (Wash.) 141 P. 886, filed July 7, 1914, held that the words 'other property' could refer only to property of a like nature. This court, in the absence of a construction of the exemption statute by the Supreme Court of the state of Washington in Re Swanson (D.C.) 213 F. 353, filed May 5, 1914, held that selection could be made of other property not to exceed $250 coin in value, where the bankrupt did not possess, or did not desire to select, the animals named in subdivision 4, supra, and that money would come under the term 'other property.' The Supreme Court of Washington, in Creditors' Collection Ass'n v. Bisbee, supra, based its conclusion upon Carter v. Davis, 6 Wash. 327, 33 P. 833; In re Gerber, 186 F. 693, 108 C.C.A. 511; In re Scheier (D.C.) 188 F. 744; and Ballard v. Waller, 52 N.C. 84. These cases were all considered in Re Swanson, supra, and the decision of the state court does not change my personal view; and being concluded upon the question of the construction of a state statute by the decision of the state court of last resort (St. Louis Southwestern Ry. Co. v. State of Arkansas, 235 U.S. 350, 35 Sup.Ct. 99, 59 L.Ed. . . ., U.S. Supreme Court decision, filed December 7, 1914), and the issue being of such vital concern in the administration of bankruptcy estates, and the first impression being so radically opposite to what I believe the law to be, I have carefully examined the opinion and the cases upon which it is predicated, and am convinced that the only thing the court desired to say was that money cannot be selected in lieu of the animals named in the statute.

The portion of the statute in question, reads:

There shall be exempt, 'to each householder, two cows, with their calves, five swine, two stands of bees, thirty-six domestic fowls, and provisions and fuel for the comfortable maintenance of such * * * animals for six months: Provided, that in case such householder shall not possess or shall not desire to retain the animals above named, he may select from his property and retain other property not to exceed two hundred and fifty dollars, coin, in value.'

The state Supreme Court says:

'The words 'other property' * * * can refer only to other property of a like nature to that specially mentioned, under a well-known rule of statutory construction. To hold that money falls within the phrase 'other property' is to do violence to the rule of ejusdem generis.'

And then discusses generally the relation of this provision to all property, and further says that the court held in Carter v. Davis, supra:

''It was sought to base the exemption right as a lieu exemption upon subdivision 3 of section 563, exempting to each householder certain enumerated animals and 'other household goods, utensils, and furniture, not exceeding $500 coin in value.' This contention was denied; the court holding that no right was conferred upon the debtor to retain other property of a different character in lieu of that authorized to be retained as exempt.'

The court confuses subdivision 3 and subdivision 4, supra. Subdivision 3 provides:

'To each householder, one bed and bedding, and one additional bed and bedding for each additional member of the family, and other household goods and utensils and furniture not exceeding $500.00, coin, in value.'

The additional selection under this subdivision must be made from other household goods, utensils, and furniture, and clearly there is no provision of statute whereby a person could claim as exempt certain enumerated animals in lieu of household goods, etc. Subdivision 4, supra, provides for the selection of other property in lieu of the animals named, but does not require it to be of a like character, but simply provides, in general terms, that where the party does not possess the cows with their calves and the five swine, or, having them, does not care to retain them, he may select from his other property and retain property, in lieu of the animals, not exceeding $250 coin in value, and in this selection he may take household goods, utensils, and furniture, if he should happen to possess them, because there is no limitation to the provision, but he could not, under the provisions of subdivision 3, select the animals in lieu of household goods, because this subdivision limits the selection to other household goods, etc.

The state court quotes the Circuit Court of Appeals in Re Gerber, supra, in support of its contention. The Circuit Court of Appeals made some reference to a quotation from the Carter Case, but did not decide the issue here presented. On page 700 of 186 Fed., on page 518 of 108 C.C.A., the court said:

'The rules and forms prescribed by the Supreme Court under and by virtue of the Bankruptcy Act have the force and effect of law, and it therefore seems to us to result necessarily that the bankrupt here, even though it should be conceded that he was not limited to the species of property specified in the statute of Washington, as hereinbefore indicated, lost any right he may have had to the exemptions claimed, by his failure to make the claim * * * within the time legally prescribed therefor.'

No consideration was given to the provisions of subdivision 4, supra, as distinguished from subdivision 3, supra; nor does it appear that the courts' attention was called to these provisions. It does appear, however, that only a general reference was made to the Carter Case, which, as will be shown, did not determine, or attempt to determine, the matter.

In the Carter Case, Davis, acting under the direction of certain writs of attachment against the property of Carter, levied upon and took into his possession certain described live stock, consisting of horses, mules and cattle, together with other property. Afterwards a portion of the property was sold and two horses were sold for $165, and also all of the live stock, except one cow and two calves, which were claimed and received by the respondent at the time of the sale, for which he received more than $250. Afterwards, on January 19, 1892, Mrs. Carter, 'acting for her husband and in his absence, ' duly and regularly claimed of the appellant, as exempt from attachment and sale as being community property of the respondent and the said R. P. Carter, certain household goods and furniture not involved in the litigation and not exceeding $150 in value, and also $250 in coin, the proceeds of the sale of live stock selected in lieu of the exemptions provided for in subdivision 4 of section 486 of the Code of Civil Procedure, and also the sum of $165, proceeds derived from the sale of the horses and other property. The court said:

'It will be observed that it does not appear that the respondent was a householder residing in this state at the time of the levy of the attachment, and, as such, entitled to the benefits of the exemption law. Nor does it appear that she intends to carry on the business of farming in the absence of her husband. But it does appear that, in claiming the property in question as exempt, she was acting for R. P. Carter in his absence. Now, conceding that R. P. Carter was a householder at the time of the levy, and it appearing that his family consisted of his wife, the respondent, only, he had a right as such householder, if entitled to any exemption whatever, to retain one bed and bedding, and other household goods and utensils and furniture, such as he might select, but not exceeding $500 coin in value. Code Procedure, Sec. 486, subd. 3. The respondent, as his representative, selected the 'bed and bedding' and certain other household goods, utensils, and furniture, not exceeding $150 in value, none of which was levied upon by the appellant, and then demanded of appellant, in lieu of other property of like character which was not selected, and perhaps not even possessed by her husband, $250, the proceeds of the sale of the live stock above mentioned, none of which was claimed to be exempt at all, and also the sum of $165, the proceeds derived from the sale of the two horses. * * * The claim to this $250, in the hands of the sheriff, is manifestly unfounded in law. The section of the statute referred to authorizes the selection of 'other household goods, utensils and furniture,' and prescribes the method and by whom such property may be selected, but confers no right to retain or select other property of a different character, in lieu of that authorized to be selected and retained. But it is claimed by the appellant that in no event can the judgment in this

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