Roberts v. Shaffer
| Decision Date | 01 February 1916 |
| Docket Number | No. 3879.,3879. |
| Parties | ROBERTS v. SHAFFER |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Aberdeen; Geo. W. Crane, Judge.
Action by G. W. Roberts against J. S. Shaffer. Judgment for plaintiff, and defendant appeals. Affirmed.Max Stokes and Fred G. Huntington, both of Aberdeen, for appellant.
Frank McNulty, of Aberdeen, for respondent.
S., as sheriff, having in his hands an execution issued on a money judgment against R., on October 10th levied on certain debts owing by various parties to R., and received from such parties the amounts due thereon; the same being less than $750. On October 14th R. served upon S. a claim of exemptions, claiming the exemptions allowed to the head of a family by section 346, C. C. P. This claim of exemptions was made in accordance with the provisions of section 355, C. C. P.; it set forth that claimant was the head of a family and a resident of the state; it had attached, as a part thereof, what purported to be a schedule of all of R.'s property; it claimed as exempt all of the property described in said schedule, and “in particular *** the property which you have levied upon [describing same]”; and it named the person selected by R., under section 356, C. C. P., to act as one of the appraisers for appraising R.'s property. S. took no steps to have R.'s property appraised, and failed to release his levy, but on October 19th levied on additional property, the same being property described in the schedule. On November 6th R. brought this action against S. to recover the amount of the debts levied upon and collected by S. and to recover punitive damages. Trial was had to court and jury, but, when both parties had rested, the plaintiff moved for a directed verdict for actual damages, and moved that the question of his right to, and the amount of, punitive damages be submitted to the jury; and defendant moved for a directed verdict on all the issues. The court granted plaintiff's motion, and the jury brought in a verdict for actual damages in the sum named by the court, and also a verdict for a certain amount as exemplary damages. From such judgment and an order denying a new trial, this appeal was taken.
[1] Appellant has assigned numerous errors based upon the rulings and conduct of the court during the trial; but, as no exceptions were saved thereto, the errors, if any, were waived.
[2] Appellant contends that the evidence was insufficient to warrant the verdict for actual damages. It appears that appellant never took any steps to have respondent's property appraised until in December, nearly a month after this action was started. Such delay was unreasonable. Upon claim of exemption being made, it is incumbent upon the officer levying to take prompt action and have the property appraised to the end that the judgment debtor's exemptions can be set apart and the officer may know what, if any, property is subject to levy. In this case, inasmuch as the property levied upon was much less than $750 in amount and was specifically claimed as exempt by the debtor, and inasmuch as there was no issue raised as to the debtor being the head of a family and entitled to $750 exemptions, the debtor was absolutely entitled to the return of the money collected, and this regardless of whether he had property which, in the whole, exceeded $750 in value. There was absolutely no justification for appellant's holding the proceeds of this levy after such claim of exemptions was served on him. The above is fully supported by the following authorities: Paddock v. Balgord, 2 S. D. 100, 48 N. W. 840;Nelson v. Oium, 21 S. D. 541, 114 N. W. 691;Millerke v. Reiley, 31 S. D. 342, 141 N. W. 136;State v. Gardner, 32 Wash. 550, 73 Pac. 690, 98 Am. St. Rep. 858.
[3] Appellant claims that exemplary damages could not properly be imposed because “exemplary damages cannot be recovered in any case where there is no actual damages.” He seems to be of the view that the exemplary damages were based upon the second levy made on October 19th, and that, inasmuch as all claim for actual...
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