Kilpatrick-Koch DRY Goods Co. v. Callender

• Citation: 34 Neb. 727,52 N.W. 403
• Parties: KILPATRICK-KOCH DRY GOODS CO. v. CALLENDER ET AL.
• Decision Date: 19 May 1892
• Court: Nebraska Supreme Court

34 Neb. 727

52 N.W. 403

KILPATRICK-KOCH DRY GOODS CO.

v.CALLENDER ET AL.

Supreme Court of Nebraska.

May 19, 1892.

Syllabus by the Court.

1. An action was brought by the K. Co. v. C. & C. to recover $3,820 and interest, and an attachment duly issued, and a garnishee served with notice, who appeared and answered, admitting an indebtedness. Afterwards judgment for the amount claimed was rendered, and the garnishee ordered to pay the money into court to abide its further order. The money was thereupon paid into court, when the debtor claimed it as being exempt, and the court awarded it to him. Held, upon the evidence, to be erroneous.

2. A debtor who swears that he has neither lands, town lots, nor houses subject to exemption, must negative the possession of any of these, and, if he fails to do so, the affidavit will be insufficient.

3. Where at the time an attachment is levied upon property it is not exempt the debtor cannot, by transferring his other property, afterwards thereby render the property so levied upon exempt.

Error to district court, Lincoln county; CHURCH, Judge.

Action by the Kilpatrick-Koch Dry Goods Company against O. N. Callender and M. Callender on a note. On a judgment discharging its attachment therein, plaintiff brings error. Reversed and remanded.Grimes & Wilcox, for plaintiff in error.

T. Fulton Gantt and J. E. Morrison, for defendants in error.

MAXWELL, C. J.

On the 15th of September, 1890, the plaintiff brought an action against the defendant in the district court of Lincoln county to recover the sum of $3,820 and interest on a promissory note. On the next day proceedings for an attachment were duly instituted, and an attachment issued, which was returned that the officer had been unable “to come at the property of M. Callender and O. N. Callender claimed to be in possession of J. C. Frederhoof.” He served him with notice to appear and answer, etc. The garnishee appeared, and answered in substance that he was in possession of $480, the property of the defendants. This notice was served on September 16, 1890. On the 16th of November, 1890, judgment was rendered against the defendants and in favor of the plaintiffs for the sum of $3. 904.60, and the garnishee ordered to pay the money held by him into court to abide its further order. On the next day O. N. Callender filed an inventory of his personal property as follows: “Inventory of the whole of the personal property owned by O. N. Callender of Gandy precinct, Logan county, Nebraska: One cow; two tons of hay; one hog; three pigs, six weeks old; four beds and bedding; necessary household furniture, consisting of 10 chairs, 2 stoves, 2 carpets, 1 table, dishes, 2 trunks and bureau, 1 kitchen safe, one lounge; and $450 cash, deposited with J. C. Frederhoof, and now in the custody of this court, which amount, together with the afore-mentioned articles of personal property, I claim as my cash and absolute exemption.”

“State of Nebraska, Lincoln county--ss.: I, O. N. Callender, do solemnly swear that I am a resident of Gandy, Logan county, state of Nebraska, and am the head of a family consisting of a wife and six children, and that I have neither lands, town lots, nor barns subject to exemption as a homestead under the laws of this state, and that the above inventory contains a true and correct statement of the whole of the personal property owned by me. O. N. CALLENDER. Subscribed in my presence and sworn to before me this 20 day of Nov., 1890. [[[Seal.] JAMES M. RAY, Notary Public. Filed Nov. 20th, 1890. W. C. ELDER.”

The court below sustained the exemption, and permitted Callender to claim the money.

It will be observed that the affiant does not swear that he possesses no houses. The use of the word “barns” probably was not an accident, but, whether so or not, it is not sufficient. To this affidavit the plaintiff filed an answer as follows: “Answer to defendant O. N. Callender's...