Mann v. Welton

• Decision Date: 06 April 1887
• Citation: 21 Neb. 541,32 N.W. 599
• Parties: MANN v. WELTON.
• Court: Nebraska Supreme Court

21 Neb. 541

32 N.W. 599

MANN

v.WELTON.

Supreme Court of Nebraska.

April 6, 1887.

Syllabus by the Court.

The exemption of $500 in personal property in favor of a judgment debtor, provided by section 521 of the Civil Code in lieu of a homestead, must depend upon the filing of the inventory as provided by section 522, and the selection of the property claimed by the debtor to be exempt.

Replevin cannot be maintained against an officer for property levied upon and claimed to be exempt under said section until after the inventory is filed and the appraisement and selection are made.

A new trial will not be granted where it appears, as matter of law, that upon the conceded facts the result must be the same.

Error to district court, Holt county.

Uttley & Small, for plaintiff.

H. C. Brome and M. F. Harrington, for defendant.

REESE, J.

This was an action of replevin instituted by plaintiff in error against defendant in error for the possession of personal property, consisting of a stock of harness and saddlery goods. It is alleged in the petition that plaintiff is the head of a family; that he is not the owner of town lots, land, nor homestead exempt to him as a homestead; that the property described in his petition is exempt to him in lieu thereof, under the provisions of the statute of exemptions, and that defendant has wrongfully levied upon the property, and without authority so to do; that the execution, to satisfy which the levy was made, was void on its face; and that the pretended judgment upon which the execution was issued was void for want of jurisdiction. A trial was had, which resulted in a verdict and judgment in favor of defendant. Plaintiff brings error to this court.

The controlling question in the case is presented by the sixth instruction given to the trial jury by the court, and to which plaintiff excepted. It is as follows: “(6) To enable plaintiff to claim the benefit of the exemption provided in section 521 it was necessary for him to file an inventory, under oath, of the whole of the personal property owned by him, and, inasmuch as the proofs in this case show that no such inventory was filed, you are charged that the plaintiff cannot recover under the provisions of said section 521.”

It is not claimed that any of the property in question was exempt to plaintiff under the provisions of section 530 of the Civil Code, but it is insisted that as the property taken did not aggregate the value of $500, and constituted substantially all of the property owned by plaintiff which was not exempt from execution under the specific exemptions of that section, and as plaintiff was not the owner of a homestead, the property was exempt, and the levy was wrongful.

Section 521, referred to in the instruction, is as follows: “All heads of families, who have neither lands, town lots, nor houses subject to exemption as a homestead under the laws of this state, shall have exempt from forced sale on execution the sum of five hundred dollars in personal property.” It will be observed by this that no specific property or kind of property is named, but that the language is general,--“five hundred dollars in personal property” is exempt from forced sale on execution. Section 522 provides that “any persondesiring to avail himself of the exemption, as provided for in the preceding section, must file an inventory under oath in the court where the judgment was obtained, or with the officer holding the execution, of the whole of the personal property owned by him or them at any time before the sale of the property; and it shall be the duty of the officer to whom the execution is directed to call to his assistance three disinterested freeholders of the county where the property may be, who, after being duly sworn by said officer, shall appraise said property at its cash value.” Section 523 provides that “upon such inventory and appraisement being completed, the defendant in execution, or his authorized agent, may select from such inventory an amount of such property, not exceeding, according to such appraisal, the amount or value herein exempted, but, if neither such defendant nor his agent shall appear and make such selection, the officer shall make the same for him.”

By these sections it clearly appears that, if the execution debtor desires to avail himself of the benefits which are placed within his reach by section 521, he...