Northwest Bank & Trust Co., Davenport, Iowa v. Minor

• Citation: 82 N.W.2d 323,275 Wis. 516
• Parties: NORTHWEST BANK AND TRUST CO., DAVENPORT, IOWA, a foreign corporation, Appellant, v. Luther F. MINOR, Defendant, Yvonne A. Minor, Impleaded Defendant and Respondent.
• Decision Date: 09 April 1957
• Court: United States State Supreme Court of Wisconsin

Page 323

82 N.W.2d 323

275 Wis. 516

NORTHWEST BANK AND TRUST CO., DAVENPORT, IOWA, a foreign

corporation, Appellant, v. Luther F. MINOR, Defendant, Yvonne A. Minor, Impleaded Defendant and Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Rice, Rice & Rice, Sparta, for appellant.

Donovan, Gleiss, Goodman, Breitenfield & Gleiss, Sparta, for respondent.

MARTIN, Chief Justice.

Luther F. Minor is the owner of a 1952 Ford automobile. He is absent without leave from the United States army and his whereabouts are unknown. At the time of the attachment the automobile was in the possession of the wife and used by her in going to and from her work, the earnings of which enable her to support herself and her three minor children. The debtor has made no financial contribution to his family since he has been AWOL.

Sec. 272.18, Stats., so far as material, provides:

'No property hereinafter mentioned shall be liable to seizure or sale on execution or on any provisional or final process issued from any court or any proceedings in aid thereof, except as otherwise specially provided in the statutes: * * *

'(6) * * * any automobile used or kept for the purpose of carrying on the debtor's trade or business, not exceeding four hundred dollars in value * * *'

In the absence of constitutional or statutory provisions all of the property of a debtor may be subjected to the payment of his debts. Williams v. Smith, 1903, 117 Wis. 142, 93 N.W. 464; Gillett State Bank v. Knaack, 1938, 229 Wis. 179, 281 N.W. 913, 119 A.L.R. 464. The right of a debtor to hold his property free from the claims of creditors is not a common-law right but a right created by constitutions and statutes. 22 Am.Jur., Exemptions, sec. 3, p. 5. As stated in sec. 13, p. 14:

'* * * the right itself is the creature of express constitutional or statutory provisions, so that in their absence, no one is entitled to exemptions. It follows that any inquiry concerning the persons, or classes of persons, who may claim exemptions in any particular state must be directed to the Constitution and statutes of such state. Unless the debtor claiming an exemption is one of the persons or classes of persons therein named, his claim cannot prevail. Nor does the rule of liberal construction of exemption laws permit a plain disregard of the legislative mandate by extending exemptions to those not embraced in the acts.' (Emphasis supplied.)

From a reading of sec. 272.18, Stats. it is evident that the exemption of the automobile is personal to the debtor. Subd. (5) creates the exemption for wearing apparel 'of the debtor and his family;' subd. (7) for the 'provisions for the debtor and his family;' subd. (9) for sewing machines 'owned by individuals and kept for the use of themselves or families.' If such had been the intention of the legislature, it would have framed the language of the automobile exemption in similar terms, but it did not do so. It may be that the statute is somewhat outmoded, that changing times have made the automobile a more important factor in the wage earning of a wife and family than it was at the time the section was enacted, but such observations would be more fruitfully addressed to the legislature than to the court.

There is no showing in the record,...