Paddock v. Balgord
| Decision Date | 28 May 1891 |
| Citation | 2 S.D. 100,48 N.W. 840 |
| Parties | CHESTER M. PADDOCK and MARY C. PADDOCK, Plaintiffs, v. BALGORD, Sheriff of Brookings County, et al. Defendants. |
| Court | South Dakota Supreme Court |
Appeal from the District Court, Brookings County, SD
Affirmed
Philo Hall, Cady & Wright
Attorney for appellants.
Truman & Mitchell and Matthews & Murphy
Attorneys for respondents.
On the 15th day of August, 1887, defendant Balgord, as sheriff of Brookings county, levied upon and afterwards sold one bay mare as the property of plaintiff Chester M. Paddock, upon an execution issued upon a judgment against said Paddock. Defendant Fisher was the judgment creditor, and directed such seizure and sale. The plaintiffs sought to recover the value of the mare, on the grounds that one undivided half of the same was the property of plaintiff Mary C. Paddock, and not liable for Chester M. Paddock's debts, and that the other undivided half interest, belonging to Chester M. Paddock, was exempt from execution. Defendants denied that Mary C. Paddock owned any interest in the mare, and resisted Chester M. Paddock's claim of exemption, on the ground that the judgment on which the execution was issued was a "judgment for labor," against which the mare was not exempt. So that the questions on the trial were, who owned the property, and was Chester M. Paddock's interest exempt? The case was referred to a referee to hear and determine all issues of fact, and to report his findings. The record shows no exceptions to any part of the evidence, or to any ruling of the referee; so that but little is required of us but to examine the evidence sufficiently to ascertain whether there is any substantial testimony supporting the findings to which appellants object, for no rule of practice is now more frequently asserted than that, if there is any substantial evidence sustaining the findings of the court or referee, such findings will not be disturbed, (Phillip Best Brewing Co. v. Pillsbury & Hurlbut El. Co. 5 Dak. 62, 37 NW 763,) and then whether such findings, if allowed to stand, justify the judgment predicated upon them.
The first assignment of error is that the referee erred in finding that Mary C. Paddock was the owner of a one-half interest in the mare in controversy. There was certainly some evidence in support of the referee's finding as to this fact, both herself and husband testifying to it positively, and explaining fully the source of her title and manner of acquiring it. Against this defendants introduced evidence tending to disprove her claim of ownership. The question of fact thus in dispute is determined by the referee in favor of plaintiff Mary C. Haddock, and we cannot disturb it.
The second and third assignments allege error upon the part of the court in holding that Chester M. Paddock's interest in the mare was exempt, under the statutory provisions for additional exemptions, for the reason that the schedule which he delivered to defendant the day following the levy did not show that it included all his personal property, as provided in Section 5130, Comp, Laws, and that his personal property did not exceed $1,500 in value. We do not think the failure of the schedule to state that it contained all the debtor's personal property would be fatal to it, as one of the steps leading to the end in view, to wit, the selection of the debtor's additional exemptions in the event of his having more than $1,500 worth of personal property. The section itself contemplates that property of the debtor may be either deliberately or inadvertently omitted without rendering the schedule void or inoperative, for it declares what the consequences of such omission shall be, to wit, that "any property owned by the debtor, and not included in the schedule, shall not be exempt as aforesaid;" and it was not intended that this schedule should show the value of the articles listed, nor that their aggregate value did not exceed $1,500. That was to be determined by an appraisement, to be made under the direction of the defendant, who was the sheriff. It is found by the referee, and conceded as a fact, that no appraisement was made; but Section 5131 made it the duty of the sheriff to see that it was made. Either the debtor or the...
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