Lynd v. Picket

• Decision Date: 01 January 1862
• Parties: ISAAC P. LYND vs. WILLIAM C. PICKET et al.
• Court: Minnesota Supreme Court

7 Minn. 128

ISAAC P. LYNDvs.

WILLIAM C. PICKET et al.

Supreme Court of Minnesota.

Appeal from order of the district court, Fillmore County.

Points and authorities for appellants: —

1. The complaint does not state facts sufficient to constitute a cause of action. Pub. Stat. 568, § 90; id. 570, § 99.

2. If the complaint is laid under the first section cited, it will be seen that the property is not thereby exempt from "taking" on attachment, but only from "sale." Neither does the complaint state the facts required by subdivision 9 of the same section. This section is not repealed by the act of Aug. 12, 1858, as the two are not inconsistent. The exemptions of the first are of a different class of property, and upon other conditions from any made in the latter.

3. If the complaint is laid under § 99, p. 570, Pub. Stat., it is insufficient. The property was not exempt from "taking" on a warrant of attachment. Pub. Stat. 571, § 103. That portion of § 99, p. 570, of Pub. Stat., which reads thus, "no property hereinafter mentioned or represented shall be liable to attachment, execution, or sale, or any final process, &c.," should read, "on any final process, &c." The word "or" is evidently inserted by typographical or clerical mistake. The language used shows conclusively that the insertion of the word "or" is by an error. Tullis et al. v. Orthwein, 5 Minn. [377.] The officer lawfully taking exempt property may lawfully detain it. This section does not exempt a "team," as stated in the complaint. The complaint does not state that the property was selected or "chosen" by the respondent, as required by subdivision 8 of this section. This allegation is necessary. Frost v. Shaw, 3 Ohio St. 370; 10 Ala. 370; 3 Gilman (Ill.), 578. The exemption of property is a personal privilege which must be asserted in time, or it will be deemed waived. The claimant must bring himself within the provisions of the statute. Mickes v. Tousley, 1 Cow. 114; Earl v. Camp, 16 Wend. 562; 5 Denio, 119; 3 Gilman, 578; Van Sickler v. Facobs, 14 Johns. 434. The act of August 12th, 1858, evidently intends that the claimant must assert and give notice of his privilege at the time it is made, otherwise there would be no reason assignable why the legislature should use the terms we find in the act of 1858, providing for a "selection" and "choice" both in the exemption of real and personal property. These terms were not in the law existing before that act, and must have been introduced to establish a new rule. The two acts referred to are in pari materia, and should be construed together. Thayer v. Dudley, 3 Mass. 296; Holbrook v. Holbrook, 1 Pick. 248, 254; 10 Pick. 235; 1 Kent. Com. 463; 3 Mass. 21 Unless the selection is made and notice given, it is but just that the claimant should be deemed conclusively to have waived his privilege, per Gleason, J., in Harper v. Leal, 10 How. Pr. R. 283, etc.; per Selden, J., in Crawford v. Lockwood, 9 How. Pr. R. 547. That the debtor must make a selection is also apparent, from the fact that in most instances the language of the statute is in the alternative, and a selection is therefore a necessity. Pub. Stat. 506, § 99, sub. 6. The complaint should state the facts constituting the cause of action, in ordinary and concise language, Pub. Stat. 540, §§ 641-2; 13 How. Pr. R. 37; per Marvin, J., in Clift v. White, 12 N. Y. 538. "Election" is a fact, and, if material, should be expressly found. 3 Ohio, 270. The allegation in the complaint that appellant Jones knew the property to be exempt, is not an allegation of the fact of "selection" or of notice, nor even of a conclusion from those facts. The allegations that the property was "wrongfully" taken and detained, are not allegations of facts. Ensign v. Skerman, 13 How. Pr. R. 37; Page v. Boyd, 11 How. Pr. R. 417; Thomas v. Desmond, 12 How Pr. R. 321; Wooden v. Strew, 10 How. Pr. R. 50; Lawrence v. Wright, 2 Duer, 674. The allegation of a "demand made" was entirely unnecessary, if the taking was "wrongful." 1 Chit. Pl. 171-2, and notes; 2 Starkie Ev. (5th Am. Ed.) 842-3; Stillman v. Squire, 1 Denio, 327. The demand alleged is on account of ownership, and not on account of exemption. The ownership was admitted by the taking. 1 Chit. Pl. (10th Am. Ed.) 159-60. The allegation in the complaint that the property is exempt, "it being the only team and tackle therefor owned by the plaintiff," is not the charging of a fact. It is only argumentative or explanatory of the conclusion preceding it. The fact of the property being "the only team," etc., of plaintiff, was wholly immaterial. It might or might not be true, and the property still be liable on attachment. The taking was not wrongful, unless the property was "chosen as exempt," and notice given thereof. Pub. Stat. 570, etc. §§ 99, 103-4. It is claimed that if "selection" is necessary, that it would only be a defense, and the want of selection and notice should have been pleaded and proved by appellants. It would be a novel rule that would compel a party to allege and prove the absence of a fact. 1 Chit. Pl. 222, is cited in support of this theory. It is true that a party need not allege facts which would come more properly from the other side, but this is not an instance. If selection was necessary, it should have been stated in the complaint.

Points and authorities for respondent: —

1. The complaint is sufficient. It states that the property was exempt from an attachment or execution; that Jones, knowing it to be so, nevertheless directed the officer to attach it on a warrant which only authorized him to take the property "not exempt from execution," and that the officer did so. This makes them both trespassers. Comp. Stat. 551, ch. 60, § 138; id. 571, ch. 61, § 8; 3 Starkie Ev. 1445; 2 Greenl. Ev. § 622; Woodbury v. Long, 8 Pick. 543; 2 Greenl. Ev. 579; 3 Starkie Ev. 1459; Stat. 1862, 101, ch. 43, § 1. The complaint is according to the precedents. Abbott, 315; 2 Chit. Pl. 859. The facts stated exclude the applicability of the supposed principle of "selection." Comp. Stat. 571, ch. 61, § 8, sub. 8; Webster's Dict. "Team." Were it otherwise, it is matter of defense to be pleaded by defendants. 1 Chit. Pl. 222-225.

R. A. Jones, for appellants.

Ripley, Wells & Cavanaugh, for respondent.

ATWATER, J.

The first objection raised by defendants upon the trial of this action is, that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges that on the 16th of November, 1859, he was the owner and in possession of one span of horses, double set of harness, and neck yoke, of the value of $267, which property was exempt by law from attachment or execution, it being the only team and tackle therefor owned by the plaintiff. That Picket was sheriff of the County of Fillmore, and on said day defendant Jones sued out a writ of attachment, from the district court of said county, against the property of the plaintiff not exempt from execution, in an action then pending in said court, in which Jones was plaintiff, and this plaintiff defendant. That said Jones, well knowing said property was exempt, on said day placed the writ in the hands of the deputy sheriff, and directed him to attach the property. That said deputy did wrongfully attach and take into his possession said property, and delivered the same to defendant Jones at his request. The complaint then alleges a demand of the property, and wrongful detention by the defendants.

Section 99, p. 570, Comp. Stat., provides that "no property hereinafter mentioned or represented, shall be liable to attachment, execution, or sale, or any final process from any court in this state." The appellants contend that the word "or" above quoted, should be "on," and that the word as printed is a typographical error. As the word used makes sense in the connection in which it is employed and as we have no evidence that the error alleged really exists, we must take the language as we find it in the statute. If the construction claimed by appellants be correct, and the property specified be only exempt from attachment and sale on final process, then the converse of the proposition might be urged with much force, that the property specified is liable to attachment and sale on mesne process, which, if true, would greatly limit the benefits which it would seem the law intended to confer upon the debtor.

This statute, then, provides that certain property shall not be liable to attachment, execution, or sale. What is the liability here spoken of? Is it that an attachment or execution shall not be levied at all upon such property, or, if levied upon, that it shall not be detained in possession of the officer, as provided by law, in ordinary cases? Section 103, p. 571, Comp. Stat., contemplates that a levy may be made upon property exempt by law from excution. And in Tullis v. Orthwein, 5 Minn. [377], we held that the officer holding an execution has the right to levy upon property exempt from execution, and consequently to take the same into possession. This rule, although correct in that case, is perhaps too broadly stated, and is not applicable to every case of a levy of attachment or execution. The object aimed at by sec. 103 does not necessarily require such construction, and the application of the rule might in some cases lead to injustice. Where exempt property is mingled with other of the same kind not exempt, or where the debtor's property is so situated that the party cannot know that it is exempt, there may be justification for a levy, and liability therefor only arise, upon proper demand for the exempt property. But where, as in the case at bar, a separate and distinct article of property is taken, which is expressly exempt by statute, and the party holding or directing the service of the writ, knows before or at the time of such service, that the property seized is exempt, there is no reason for claiming that the liability of the party...