Neilson v. Oium
| Decision Date | 15 January 1908 |
| Parties | NEILSON v. OIUM. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brookings County.
Action by Peter Neilson against Harris Oium, sheriff, for conversion. From a judgment for plaintiff, defendant appeals. Affirmed.
Hall Lawrence & Roddle, for appellant.
Olaf Eidem, for respondent.
This is an action instituted by the plaintiff to recover the value of two horses alleged to have been converted by the defendant. The verdict and judgment being in favor of the plaintiff, the defendant has appealed.
The facts disclosed by the record may be briefly stated as follows: The McCormick Harvesting Machine Company obtained a judgment against the plaintiff Neilson, and an execution was issued thereon and placed in the hands of the sheriff of the county of Brookings for execution. It further appears that the sheriff proceeded to levy upon certain personal property of the said Neilson, and thereupon Neilson served upon the sheriff a schedule of his property, claiming all of the same as exempt, and selected an appraiser of the said property that thereupon the sheriff selected one appraiser, and the two selected the third as provided by statute, and an appraisement of the property described in the schedule was made resulting in fixing the value to be $1,027.70; that the sheriff thereupon notified the judgment debtor, Neilson, to immediately make his selection of property claimed by him to be exempt; that, Neilson failing to designate what property in the schedule he claimed as exempt at that time, the sheriff took the two horses in controversy, and subsequently proceeded to sell the same under his execution; that before the sale and within three days after the appraisement, and before the day of sale, Neilson served upon the sheriff a notice that he claimed the two horses as exempt, and demanded possession of the same, but the sheriff refusing to deliver them, this action was instituted.
The defendant as grounds for reversal of the judgment in this action contends (1) that this is an action for the conversion of the property, and the only damages recoverable in such an action is the actual detriment caused to the plaintiff and as it appears that plaintiff had left property to the value of $750 after deducting the value of the two horses, he was entitled to recover no damages in this action; (2) that, as it appears by the testimony that the plaintiff retained $750 worth of personal property and the exemption contemplated by our statute "being an exemption of value and not of specific kinds," so far as it applies to this case, the plaintiff, if he made any claim to any particular property taken by the defendant, must have offered to return other property, so that the exempt property retained by the plaintiff would not exceed the value of $750; (3) that the defendant was entitled, in any event, to prove that the plaintiff was not damaged or injured, as he had, in fact, received his exemption of $750 and was not therefore damaged except in a nominal amount; (4) that plaintiff cannot claim damages for denial of the right to select certain specific property, as his right of action is only for damages for conversion, and therefore the measure of damages to which he was entitled was only for the actual loss and detriment, and not the value, of the property.
We are of the opinion that the defendant's contention cannot be sustained, as it is in our opinion based upon an erroneous construction of the exemption statute of this state. Section 345 of our Revised Code of Civil Procedure provides for absolute exemptions, and section 346 provides 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, and must be chosen and appraised as hereinafter provided." It will be observed that by the provisions of this 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 $750 in value." It will be further observed that the only limitation to the debtor's right to select his exemptions from his personal property is that the selection so made shall not exceed $750 in value. It is clear, therefore, that the debtor may select such property as he desires to retain as exempt within the limitation above stated. Section 355 provides: "All the articles enumerated in the foregoing sections which are exempt by limitation of number must be chosen by the debtor, his agent or attorney; so also all property exempt by limitation of value must be determined by an appraisement made under the direction of the sheriff or other officer. ***" It is further provided in that section that, whenever any debtor desires to avail himself of the benefit of section 346, he is required to make a schedule of all his personal property under oath as therein prescribed. The clause of section 355 providing that all the articles enumerated in the foregoing sections "which are exempt by limitation of number" evidently refers to section 347, which provides: "Instead of the exemptions of personal property granted in the preceding section the debtor may select and choose the following property which shall then be exempt." This section has no application to the case at bar, for the reason that the debtor proceeded to claim his exemptions under section 346. Upon the appraisement being made showing that the value of the property claimed by him as his exemptions...
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