Shepard v. Findley

• Decision Date: 01 July 1927
• Docket Number: 38081
• Parties: CHESTER SHEPARD, Appellant, v. PARK A. FINDLEY et al., Appellees
• Court: Iowa Supreme Court

214 N.W. 676

204 Iowa 107

CHESTER SHEPARD, Appellant, v. PARK A. FINDLEY et al., Appellees

No. 38081

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Polk District Court.--JOHN FLETCHER, Judge.

Suit to enjoin an execution sale. Plaintiff's case was dismissed and he appeals.

Reversed.

F. L Meredith, for appellant.

James F. Page, for appellees.

ALBERT J. EVANS, C. J., and FAVILLE, VERMILION, MORLING, and KINDIG, JJ., concur.

OPINION

ALBERT, J.

On the 13th day of February, 1925, the defendant Frederick Alden obtained judgment in the municipal court of the city of Des Moines against the plaintiff and his wife, in the sum of $ 100. The same was duly transcripted to the district court of Polk County, Iowa, and in May following, execution was issued thereon, and the sheriff of Polk County, defendant herein, levied on a certain Lexington automobile as the property of the plaintiff, Shepard, and advertised the same for sale. This action was on behalf of Shepard, to enjoin the sale of this automobile, on the ground that the same was exempt to him, as the head of a family.

At the close of plaintiff's testimony, on motion, the court gave the defendants a verdict, on the ground that plaintiff had not produced any competent evidence to sustain the allegations of his petition; that the evidence showed conclusively that the automobile did not belong to the plaintiff, but to his wife, Rose Altha Shepard, and had been forfeited by her statements on the stand, in an affidavit which she admitted she signed; further, that the plaintiff has not sustained any of the allegations of his petition by competent evidence, and nothing has been shown which in any way indicates that plaintiff is entitled to this automobile as exempt property. As the defendants introduced no testimony in the case, the determination thereof must rest upon the testimony introduced by the plaintiff and whatever conflict there may be therein. The following testimony is uncontradicted: The plaintiff had lived in Des Moines for about 46 years; he was a married man and head of a family. He was a bricklayer by occupation, for about the last thirty years; had no other source of income. He had been married to his present wife about 26 years. The automobile in controversy was bought on the 25th day of August, 1923, by the plaintiff, and paid for by him. At the time thereof, he received a bill of sale from the garage company from which he purchased the same, in which he was named as grantee. He used this car in his occupation as bricklayer, in traveling from place to place, as his work called, and hauled his tools therein, and on various occasions hauled material that he needed in his work, which was all performed in Des Moines or in its vicinity. The evidence showed that he did not give a bill of sale of said car to his wife, or to any other person; that he always drove the car, and at no time did his wife drive the same; that it was the only conveyance he had for going back and forth to his work; that the car was registered in the treasurer's office of Polk County in the name of the wife, and she served notice on the sheriff to release the same from execution, claiming to be the owner of the property and that she had purchased it with her own money; that plaintiff paid all bills for the upkeep of the car, together with all gasoline and oil used thereon. So far, the record is undisputed.

The plaintiff testified, in terms, that he is the owner of the car, and never parted with title thereto. It appears that the wife was industrious, and aided the husband in making the brick and constructing the residence in which they lived. Plaintiff testified:

"At the time the car was purchased, I laid the money down on the table, and asked her if she would rather have the money or nothing. I said, 'It is yours,--what do you want to do with it?' and she said, 'I want to buy a car.'"

The wife testified:

"I never exercised any control over the automobile myself. I never had hold of the steering wheel. I did not have anybody run the car besides Mr. Shepard."

She denied that she was the owner of the car, and further said:

"I owned it in one way. It is in my own name in the license bureau. That is, Mr. Shepard bought the car and paid for it."

There was introduced in evidence a sworn notice of release, signed by the wife, notifying the sheriff to release the automobile, and stating that the same was hers absolutely; that she acquired the money that was paid for the same by her personal labor.

The above is a general statement of the evidence in the case on which the court acted in directing a verdict in favor of the defendants.

Section 11760, Code of 1924, provides:

"If the debtor is a resident of this state and the head of a family, he may hold exempt from execution the following property: * * * 18. If the debtor is a physician, public officer, farmer, teamster, or other laborer, a team, consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle, with the proper harness or tackle, by the use of which he habitually earns his living, otherwise one horse."

In Krebs v. Nicholson, 118 Iowa 134, 91 N.W. 923, this court defines "laborer" as "one who is 'engaged in some toilsome physical occupation; one who performs work which requires little skill or special training.'" In Lames v. Armstrong, 162...