Mennell v. Wells

• Decision Date: 21 June 1915
• Docket Number: 3539.
• Citation: 149 P. 954,51 Mont. 141
• Parties: MENNELL v. WELLS, SHERIFF.
• Court: Montana Supreme Court

149 P. 954

51 Mont. 141

MENNELL v. WELLS, SHERIFF.

No. 3539.

Supreme Court of Montana

June 21, 1915

Appeal from District Court, Custer County; C. C. Hurley, Judge.

Action by Estella Mennell against H. R. Wells as sheriff of Custer County. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

p>Page Sharpless Walker, of Miles City, and Edgar B Merrill, of Bridger, for appellant.

G. W Farr and H. E. Herrick, both of Miles City, for respondent.

BRANTLY C.J.

Claim and delivery to recover possession of personal property consisting of horses, farming implements, etc., and for damages for its detention. Prior to October 9, 1912 plaintiff and her husband, George D. Mennell, had been residing upon and farming a homestead in Custer county. They have two minor children of tender years. On the date mentioned, George D. Mennell abandoned his family, his whereabouts being thereafter unknown. The plaintiff continued to occupy the homestead and to farm it for the maintenance of herself and children, making use of the property in controversy herein for that purpose, having no other means of support. On November 12, 1912, Ben Levalley, the sheriff of Custer county, took possession of the property under attachment issued in an action brought by one Van Coil against George D. Mennell in the district court of that county. On January 6, 1913, the defendant, as successor of Levalley, received from him the property and, when the present action was brought, was holding it for the satisfaction of any judgment Van Coil might recover. On January 21, 1913, the plaintiff made demand of the defendant that he restore to her the possession of the property claiming that, as she is the head of the family, she is entitled to hold it free from attachment or execution against her husband. Upon his refusal to comply with her demand, she brought this action. To the complaint alleging substantially the foregoing facts the court sustained a general demurrer, and, upon plaintiff's declining to amend, rendered judgment for the defendant. Plaintiff has appealed.

While there are some allegations found in the complaint to the effect that the plaintiff is the owner of the property in controversy, when the pleading is read as a whole it is apparent that she founds her right to recover upon the assumption that the abandonment by her husband cast upon her all the duties and obligations of the head of the family, with the result that she is clothed, for the time being, with the right possessed by him in this behalf. In any event, counsel have submitted the single question whether a wife, situated as is the plaintiff in this case, may claim for herself and children the benefit of the statutory exemptions which the husband might claim if he were present.

Sections 6824 and 6825 of the Revised Codes declare:

"6824. The following property is exempt from execution, except as herein otherwise provided: In all cases all wearing apparel of the judgment debtor and family; also all chairs, tables, desks, and books to the value of two hundred dollars; and also all necessary household, table and kitchen furniture of the judgment debtor, including one sewing machine, stoves, stove-pipes and stove furniture, heating apparatus, beds, bedding and bedsteads, and provisions and fuel provided for individual or family use sufficient for three months, and also one horse, saddle and bridle, two cows and their calves, four hogs and fifty domestic fowls, and feed for such animals for three months, one clock and all family pictures. An unmarried person who is not the head of a family, is not entitled to any of the exemptions herein mentioned, except that of the wearing apparel of the judgment debtor."

"6825. In addition to the property mentioned in the preceding section, there shall be exempt to all judgment debtors who are married, or who are heads of families, the following property: 1. To a farmer: Farming utensils or implements of husbandry, not exceeding in value six hundred dollars; also, two oxen, or two horses or mules, and their harness, one cart or wagon, set of sleds, and food for such oxen, horses, cows or mules for three months; also, all seed, grain or vegetables actually provided, or on hand, for the purpose of planting or sowing the following spring, not exceeding in value the sum of two hundred dollars."

These provisions were enacted by the Legislature in obedience to the injunction of the Constitution: "The legislative assembly shall enact liberal homestead and exemption laws." Const. art. 19, § 4. By a general consensus of opinion, the courts hold that such laws have for their purpose the maintenance and protection of the family and that they are subject to the rule of liberal construction, to the end that this purpose may be fully effected; and though the particular statute under consideration, as is the case here makes the exemptions in favor of the judgment debtor eo nomine, the courts do not regard them as conferring a personal right upon the debtor, but rather as declaring a family right which may be...