Parsons v. Evans

• Court: Oklahoma Supreme Court
• Writing for the Court: SHARP, C. PER CURIAM.
• Citation: Parsons v. Evans, 145 P. 1122, 44 Okla. 751, 1915 OK 1110 (Okla. 1914)
• Decision Date: 22 December 1914
• Docket Number: 3522.
• Parties: PARSONS v. EVANS.

145 P. 1122

44 Okla. 751, 1915 OK 1110

PARSONS v. EVANS.

No. 3522.

Supreme Court of Oklahoma

December 22, 1914

Rehearing Denied Jan. 30, 1915.

Syllabus by the Court.

Under the statutes in this state, it is no part of the duty, nor is it the right of an officer holding an execution, to select and set apart the judgment debtor's exempt property. Neither is it his duty to advise him as to his right to certain exemptions. The right to claim and select exempt property rests wholly with and can be exercised only by the judgment debtor.

Where a judgment defendant, having more property of a certain class than is exempt by statute, desires to claim his exemptions out of the whole, it is his duty to promptly inform the officer, holding process, of the particular property selected and claimed as exempt from levy.

Where only a part of property levied upon is claimed as exempt, a demand by the execution defendant for the return of his exempt property, unaccompanied by any effort to make a selection of a part out of the entire lot, will not, in an action in replevin for possession of the exempt property subsequently selected and claimed, entitle such party to damages against the officer for the detention of such exempt property; the officer making no further defense to the action than to resist plaintiff's right to recover damages.

The right of exemption is a personal privilege, which, in order to be availed of, must be claimed by the debtor. He is not compelled to take advantage of it. He may let his property go to sale, either by choice or neglect.

Commissioners' Opinion, Division No. 1. Error from County Court, Alfalfa County; A. J. Jones, Judge.

Action by J. P. Evans against W. H. Parsons. Judgment for plaintiff and defendant brings error. Reversed and remanded.

Titus & Carpenter, of Cherokee, for plaintiff in error.

A. C Beeman, of Cherokee, for defendant in error.

SHARP C.

This is an action in replevin, filed February 8, 1910, by J. P. Evans against W. H. Parsons, a constable, to recover certain personal property, most of which had on February 5th, prior thereto, been taken from the possession of the plaintiff by defendant, by virtue of an execution issued out of a justice court, in the case of J. W. Howard v. J. P. Evans; judgment having been obtained against the defendant in that action who is the plaintiff in the present action. After describing the property sought to be recovered, which consisted of 10 hogs, 2 horses, 2 cows, 1 buggy, 1 set of harness, and about 50 bushels of corn, all of which was alleged to be exempt under the laws of the state, plaintiff in his petition asked for damages in the sum of $100 for the wrongful detention of said property. With the exception of four hogs taken under the execution, three of which belonged to the tenant of plaintiff, living on the farm from which the property was taken, the other one not being claimed an exempt, and two horses, the property replevined was identical with that taken under the execution. The hog and two horses not claimed as exempt in the present case were sold by defendant in satisfaction of the execution, to which plaintiff herein made no objection. On the same day that the action in replevin was filed, the writ issued to the sheriff, which the latter executed on February 9, 1910, by levying upon and taking said property into his possession. On March 10th following defendant filed his answer to the petition of plaintiff, denying generally the allegations contained therein, and on December 7th thereafter filed an amended answer, which contained the following additional defenses:

"(1) This defendant admits that he was in possession of the property described in plaintiff's petition.

(2) That said possession was by virtue of an execution issued out of the justice court of T. J. Hawley, a justice of the peace of Byron township, said county and state, and levied upon said property; that said levy was made subject to a certain mortgage of said plaintiff in favor of the Bank of Cherokee, Okl.; and that, at the time of said levy, the property described in plaintiff's petition was in the possession of said mortgagee.

(3) That upon demand of said plaintiff for the possession of the property described in said petition, claiming said property by reasons that same were exempt under the laws of this state, this defendant immediately delivered the property to said plaintiff and has not at any time made claim to said property since

said date."

Trial was had December 9th and resulted in a judgment in favor of plaintiff for the sum of $5 and costs. Motion for a new trial, being filed, was sustained. July 26, 1911, defendant filed a second amended answer, in which the further defenses were set up that the 10 hogs replevined were turned over to plaintiff as soon as selected from the 14 taken under the execution, and that, as to the other property, it had never been in the possession of defendant under the execution issued in the case of Howard v. Evans, but instead was in the possession of one D. B. Harrison, for the Bank of Cherokee, which at the time held a mortgage on it. The second trial resulted in a verdict for $25, and judgment was rendered accordingly. Motion for new trial having been overruled, the case is brought here on appeal.

The defendant by his amended answer having disclaimed right of possession to the property, and conceded it to be in plaintiff, the court very properly instructed the jury that the only questions to be determined by them were whether the property was wrongfully detained by defendant before being released, and, if so, the amount of damages suffered, if any. The principal question for our determination is whether the defendant wrongfully detained the property, or any part of it, from the plaintiff. This involves other considerations, namely: (1) Is it a duty of an officer, when levying an execution, to inform the debtor or his agent of his statutory exemption rights; (2) is the statute self-executing, or must the debtor claim the exemptions allowed him; and (3) how, if necessary, should he make his claim?

We find nothing in the statutes making it the duty of an officer, when levying an execution, to inform the debtor of his right to exemptions. Section 6405, Comp. Laws 1909 (section 5484, Rev. Laws 1910), provides that the execution for the enforcement of a judgment before a justice of the peace must be directed to a constable of the county, who shall collect the amount of the judgment from the personal property of the debtor, etc. Section 6451, Comp. Laws (section 2075, Rev. Laws 1910), gives a constable, in serving process and doing his duties, generally, the same authority and power over goods and chattels as is granted by law to a sheriff under like process issued from courts of record. Section 5972, Comp. Laws 1909 (section 5156, Rev. Laws 1910), names the property upon which execution shall be levied, etc. Unless, then, the duty of the constable, or other officer, to inform the debtor of his right to exemptions, can be inferred from the statute granting such exemptions (section 3346, Comp. Laws 1909; section 3342, Rev. Laws 1910), we must conclude that it is not imposed upon him. This statute reads in part:

"The following property shall be reserved to every family residing in the state exempt from attachment or execution and every other species of forced sale for the payment of debts, except as hereinafter provided: [Naming different classes of personalty exempt.]"

Does this statute of itself sufficiently set apart, from all personal property that a resident of the state may own, so much thereof as is specifically exempted thereby, so that before it could be taken under execution, the officer of the law must inform the debtor of his right to retain it? Or, continuing, can it be said that specific amounts of the property exempted are placed beyond the reach of an execution in any case? Both of these questions, we think, should be answered in the negative. The statute plainly...