Shriver-Johnson co. v. Hargraves, 5897
| Citation | 223 N.W. 315,54 S.D. 367 |
| Decision Date | 26 January 1929 |
| Docket Number | 5897 |
| Parties | SHRIVER-JOHNSON COMPANY, Respondent, v. HARGRAVES, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Municipal Court of Sioux Falls, SD
#5897—On rehearing
Parliman & Parliman, Sioux Falls, SD
Attorneys for Appellants.
Owen & Hareid, Sioux Falls, SD
Attorneys for Respondent.
Opinion Filed Jan 26, 1929
(See 220 NW 148)
This matter is now before the court upon a rehearing. The original opinion herein will be found in 220 NW at page 148.
In their petition for rehearing, counsel present the sole contention that this court, in the case of Paddock v. Balgord, 48 N.W. 840, held that the statute providing for the claiming of additional exemptions does not require a statement that the schedule of property served upon the levying officer is a schedule of all the debtor’s personal property. And counsel say that this holding in the Paddock Case has been frequently cited as authority by this court, has been generally followed by the bar of the state, and has become a law of property to which the rule of stare decisis should apply.
In support of this contention counsel quote from the opinion in Paddock v. Balgord, supra, the following language: “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 $1500 worth of personal property.”
As it does not appear from the language quoted just what the court was attempting to decide by said language, we have examined the original abstracts and briefs which were before this court in that case.
The abstract shows that, on the day after the levy was made, the debtor, Paddock, served upon the levying officer a paper headed: “A schedule of property belonging to Chester M. Paddock.” This heading was followed by a list of items of personal property, and this list was followed by a verification in which Paddock states under oath “that the above is a true and correct statement and schedule of my personal property.”
The referee who took the evidence in the case made a finding that the schedule so verified was served upon the levying officer the day after the levy was made, and that said officer neither surrendered the property nor proceeded to have it appraised as provided by law.
The trial court adopted these findings of the referee and entered judgment for Paddock on the theory that the schedule was a substantial compliance with the statute.
No question of any property being omitted from the schedule was before the court. The sole question on the point of the sufficiency of the schedule was whether the statement that the schedule was “a true and correct statement and schedule of my personal property” was fatally defective because the verification did not say a true and correct statement and schedule of all my personal property. Anything said in the opinion upon the sufficiency of the schedule, except what was necessary to decide the effect of the omission of the word all from the verification, may be considered mere dictum.
The real holding of this court was that the omission of the word all from the verification was not fatal to the claim. And from that holding we are not inclined to depart.
But no such question is presented in the instant case. The demand for the release of the property, as served in this case, made no allegation that the list of items of personal property was a correct and true statement and schedule of the debtor’s personal property. It was a simple statement that the debtor owns the following property and claims it exempt. A statement in that language might be truthfully made, regardless of how much other property the debtor might own. But petitioner’s counsel quote from the opinion in the Paddock case this further language:
“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.’”
It is true, as there stated, that the statute provides what the consequences of property being omitted shall be, in so far as the omission affects the property omitted, but that cannot be construed to mean that such penalty is the only penalty to be applied where a debtor fraudulently and “deliberately” omits property from a schedule which the law required that he must verify by oath.
The statute involved (section 2662, Revised Code of 1919) is perfectly explicit in requiring that the debtor who desires to avail himself of additional exemptions shall make a schedule of all his personal property and that this schedule shall be verified by the oath of the debtor, his agent or attorney. And it is clear that the only purpose of requiring that the schedule must be verified is to put the one who makes the verification upon his oath, that the schedule is a complete schedule of the debtor’s personal property. Without a substantial compliance with this requirement the levying officer would not be justified in surrendering the property claimed, or in proceeding with an appraisement thereof.
As to counsel’s statement that this court has frequently cited the decision in the Paddock Case as authority for holding that it is not necessary that the schedule required by the statute shall be verified as a schedule of all of the debtor’s personal property, a somewhat diligent search has not enabled us to find a single instance in which that decision has been so cited by this court. Petitioners’ counsel cite as so holding Drake Marble & Tile Co. v. Bjoraas, and Ecker v. Lindskog, 48 LRA 155. But even a casual reading of these opinions will show that they do not so hold, and that no such question was involved in either of those cases.
In the Bjoraas case, the opinion shows that the affidavit claiming exemptions recited, among other things, “that the following is a schedule of all my personal property, including money on hand, and debts due and owing me.”
And in Ecker v. Lindskog, supra, the...
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