In re Lentz

• Decision Date: 13 November 1899
• Citation: 97 F. 486
• Parties: In re LENTZ et al.
• Court: U.S. District Court — District of South Dakota

97 F. 486

In re LENTZ et al.

United States District Court, D. South Dakota.

November 13, 1899

John C. Jenkins, for bankrupts.

John H Gates, for creditors.

CARLAND District Judge.

The firm of Lentz & Odegard has been adjudged bankrupt. The referee having charge of the case, on the 9th day of November, 1899, made an order allowing the trustee to set aside a partnership exemption of $1,500, and also certain absolute exemptions from the partnership property. To the granting of this order the creditors excepted, and the questions as to whether said firm of Lentz & Odegard is entitled to any exemption from the firm property, and as to whether the members of said firm are entitled to individual exemptions out of said property, are before me for decision. Prior to 1890, the law of the state of South Dakota so far as applicable to the question certified, was as follows: Section 323, Code Civ. Proc., provided, among other things, that 'all wearing apparel and clothing of the debtor and his family, the provisions for the debtor and his family necessary for one year's supply, either provided or growing or both, and fuel necessary for one year,' should be absolutely exempt. Section 324, Id., provided 'In addition to the property mentioned in the preceding section the debtor may be himself or his agent select from all other of his personal property not absolutely exempt goods, chattels, merchandise, money, or other personal property, not to exceed in the aggregate fifteen hundred dollars in value which is also exempt. ' Section 333, Id., provided: 'A partnership firm can claim but one exemption of fifteen hundred dollars in value out of the partnership property and not a several exemption for each partner. ' It is clear from an examination of sections 323 and 324 that a partnership firm was included in the word 'debtor' in section 324, and was limited in its exemption rights to the personal property mentioned in section 333, or the alternative exemption provided in a section not quoted. The law in regard to absolute exemptions above quoted still remains the law of this state. The partnership property in the hands of the trustee consists of a general mercantile stock, such as is carried in country stores, and is composed of groceries, dry goods, clothing, boots and shoes, etc. None of the articles mentioned as absolutely exempt could, from their very nature, be taken from or included in this general mercantile stock. 'Wearing apparel and clothing' of the debtor and his family means the wearing apparel and clothing worn and used, or to be used, by the debtor and his family; not clothing purchased by a firm of which the debtor is a member, and held by said firm for sale. 'Provisions' means articles of food stored at home, or growing in the fields for home consumption; not canned beans, peas, tomatoes, corn beef, sardines, or red herring kept for sale by a mercantile firm of which the debtor is a member.

November 2, 1889, the state of South Dakota was admitted to the Union with a constitution which went into effect on that day. Section 4 of article 21 of that constitution reads as follows: 'The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead the value of which shall be limited and defined by law, to all heads of families and a reasonable amount of personal property, the kind and value of which to be fixed by general laws. ' In 1890 the legislature, in pursuance to this declaration of the constitution, passed a law known as 'Chapter 86, Sess. Laws 1890.' By this law, section 324, hereinbefore quoted, was amended to read as follows: 'In addition to the property mentioned in the preceding section the debtor, if the head of a family, may, by himself or his agent or attorney, select from all other of his personal property not absolutely exempt goods, chattels, merchandise, money or other personal property, not to exceed in the aggregate seven hundred and fifty dollars in value; and if a single person, not the head of a family, property as aforesaid of the value of three hundred dollars, which is also exempt. ' The law of 1890 said nothing in express terms as to section 333, hereinbefore quoted, but contained a repealing clause to the effect that all acts and parts of acts in conflict with said...